DEVEX, INC., ET AL., APPELLANTS,
v.
LIBERTY FEDERAL SAVINGS AND LOAN ASSOCIATION, APPELLEE
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Devex appealed a summary judgment foreclosure in favor of Liberty Federal Savings and Loan Association. The court affirmed the foreclosure judgment but reversed the award of attorney's fees because the trial court failed to make specific findings required under the Rowe formula and remanded for proper recalculation of fees.
The foreclosure judgment was affirmed, but the attorney's fees award was reversed and remanded. The trial court must apply the four-factor Rowe formula—determining hours reasonably expended, reasonable hourly rate, multiplying those figures, and adjusting for contingency or failure—with specific written findings supporting each determination.
[1] A trial court may award attorney's fees in a foreclosure action.
[2] An award of attorney's fees requires the trial court to make specific findings regarding the number of hours reasonably expended and the reasonable hourly rate.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“in computing an award of attorney's fees, the trial court should: 1) determine the number of hours reasonably expended on the litigation; 2) determine the reasonable hourly rate for this type of litigation; 3) multiply the result of 1 and 2; and when appropriate, 4) adjust the fee on the basis of the contingent nature of the litigation or the failure to prevail on a claim or claims.”
Establishes the four-factor Rowe formula that trial courts must follow when calculating attorney's fees.
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Join FLexlaw to unlock all legal intelligenceLiberty Federal obtained a mortgage on property owned by Devex, Inc. and P & P General Partnership. When Devex defaulted, Liberty foreclosed. Liberty'…
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DANIEL, Chief Judge.
Devex, Inc. and P & P General Partnership (Devex) appeal a final summary judgment of foreclosure in favor of Liberty Federal Savings and Loan Association. We find no error in the entry of summary judgment. However, we reverse the award of attorney’s fees and remand for a determination of fees in accordance with Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985).
The record reflects that both parties submitted affidavits on the matter of attorney’s fees.1 Counsel for Liberty submitted an affidavit stating that his firm had spent 105 hours, having a fee value of $13,500, in protecting Liberty’s mortgage rights and foreclosing the lien. Counsel also submitted an affidavit from an attorney who stated that $15,400 would be a reasonable fee for the work performed in this case. Opposing counsel filed an affidavit from another attorney indicating that a reasonable fee in the case would be $2,000 to $4,000. Without holding a hearing, the trial court struck the affidavit of Liberty’s counsel because it appeared that the time expended may have included the time involved in another lawsuit between the parties. On the same day, the trial court entered final summary judgment of foreclosure and awarded attorney’s fees in the amount of $11,900 to Liberty. The final judgment does not contain any findings regarding the amount of attorney’s fees.
On appeal, Devex argues that it was error to award attorney’s fees because there was no evidence in the record concerning the amount of work performed by Liberty’s counsel once his affidavit was struck by the trial court. In Florida Patient’s Compensation Fund v. Rowe, the Florida Supreme Court held that, in computing an award of attorney’s fees, the trial court should: 1) determine the number of hours reasonably expended on the litigation; 2) determine the reasonable hourly rate for this type of litigation; 3) multiply the result of 1 and 2; and when appropriate, 4) adjust the fee on the basis of the contingent nature of the litigation or the failure to prevail on a claim or claims. In determining the hourly rate, the number of hours reasonably expended and the appropriateness of the reduction or enhancement factors, the trial court must set forth specific findings. 472 So. 2d at 1151. Where there is sufficient evidence in the record to support the award but the trial court fails to set forth specific findings, the awards have been reversed and the cause remanded for a new hearing on fees. See, e.g., Lanham v. Lanham, 528 So. 2d 80 (Fla. 2d DCA 1988).
While the trial court in the present case did strike the affidavit of counsel, it is obvious that the court was still relying on the affidavit to the extent that it reflected the hours expended in the mortgage foreclosure action since the court did in fact award attorney’s fees. In essence, the court struck the affidavit only to the extent it contained hours relating to the other lawsuit between the parties.
Accordingly, we reverse the award of attorney’s fees and on remand, the trial court should determine the hours reasonably expended in this litigation and apply the formula in Rowe.
AFFIRMED in part; REVERSED in part; and REMANDED.
SHARP, J., and PETERSON, E.W., Jr., Associate Judge, concur. . We conclude that the objection, if any, to awarding attorney’s fees based solely on affidavits has been waived by Devex. See Insurance Company of North America v. Julien P. Benjamin Equipment Company, 481 So. 2d 511 (Fla. 1st DCA 1985).
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Citator
Cited By
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Castranova v. Auth, 590 So. 2d 28 (Fla. 5th DCA 1991)…g and entering an order with specific findings. See also City of Orlando v. Kensington Ltd., 580 So. 2d 830 (Fla. 5th DCA 1991); Old Southern Life Ins. Co. v. Kirby, 563 So. 2d 706 (Fla. 5th DCA 1990); Devex v. Liberty Federal Savings & Loan Assoc., 551 So. 2d 606 (Fla. 5th DCA 1989); Travelers Indemnity Co. v. Duffy’s Uttle Tavern, 541 So. 2d 689 (Fla. 5th DCA 1989). The judgment is affirmed; the order awarding attorney’s fees is vacated and this cause remanded for a rehearing and proper order. REVERSED…
Authorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Lanham v. Lanham, 528 So. 2d 80 (Fla. 2d DCA 1988)
- David v. Peninsular Bldg. Supply Co., 481 So. 2d 511 (Fla. 2d DCA 1985)
- Ins. Co. OF N. Am. v. Julien P. Benjamin Equip. Co., 481 So. 2d 511 (Fla. 1st DCA 1985)