CITY OF ORLANDO, ET AL., APPELLANTS,
v.
KENSINGTON, LTD, APPELLEE
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The City of Orlando sought to condemn property for airport expansion, and the property owner (Kensington) settled the case with attorneys working on a contingency fee of 5% of the offer plus 25% of recovery. The trial court awarded the full contractual fee of $69,267.60 despite the attorneys spending only 100 hours on the case, resulting in an effective rate exceeding $700 per hour. The appellate court reversed, holding that attorney fees in eminent domain cases must be determined based on reasonable hours and reasonable hourly rates under the Rowe standard, not on contingency fee contracts.
The court held that attorney fees in eminent domain cases under section 73.092, Florida Statutes, must be determined after litigation is completed based on reasonable hours expended and reasonable hourly rates, not based on contingency fee contracts. A contractual fee arrangement cannot establish the amount to be awarded by the court except to limit it, and when a contingency fee becomes unreasonable due to subsequent events such as early settlement, the dispute is between attorney and client, not grounds for the court to award the full contract fee to a third party.
[1] A trial court must determine a reasonable attorney's fee based on statutory elements after litigation is completed, not solely on a percentage of the award or a prior con…
[2] A property owner cannot establish the attorney's fee to be awarded by the court through a contract, except to limit the fee.
Previewing 2 of 4 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“The property owner is to receive a reasonable fee determined after the litigation is completed. This is evident from the statutory elements to be considered by the court in determining an appropriate attorney's fee. There is no authority for the proposition that the property owner — by his contract — can establish (except to limit) the fee to be awarded by the court.”
Establishes the core holding that statutory fee determination is independent of contractual arrangements and that contracts can only limit, not establish, the fee amount.
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Join FLexlaw to unlock all legal intelligenceThe City of Orlando and Greater Orlando Aviation Authority sued to condemn Kensington's property for airport expansion. Kensington retained attorneys …
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HARRIS, Judge.
The City of Orlando and the Greater Orlando Aviation Authority sued Kensing-ton, Ltd. to condemn certain real property for the expansion of the Orlando International Airport. Kensington employed attorneys to represent it on a contract basis for “5% of the offer plus 25% of the recovery.”
The initial offer was $690,000 and the settlement figure (without trial) was $815,-000 together with accrued interest resulting in a contract fee of $69,267.60. This fee was paid by Kensington out of the settlement figure.
At the subsequent hearing for an award of attorney fees pursuant to section 73.092, Florida Statutes (1989), the trial court, aware that it could not approve a fee based solely on a percentage of the award, heard testimony that it might have taken non-expert attorneys up to 400 hours to achieve the settlement result at a fee of $250 per hour for senior-attorneys, $100 per hour for associates and $50 per hour for paralegals. However, the attorneys in the case at bar spent less than 100 hours in arriving at the settlement so that the fee awarded (the same as the pure percentage fee) represented in excess of $700 per hour. Appellee seeks to justify this award on the basis that the fee contract, although admittedly extremely generous under the facts of this case, was nevertheless reasonable at the time it was entered into and that unless the property owner recovers this amount (since it has paid it) it will in effect be denied full value for its property. But this misconstrues the purpose of section 73.092 in determining attorneys fees.
The property owner is to receive a reasonable fee determined after the litigation is completed. This is evident from the statutory elements to be considered by the court in determining an appropriate attorney’s fee. There is no authority for the proposition that the property owner — by his contract — can establish (except to limit) the fee to be awarded by the court. If in fact the contract fee becomes unreasonable because of subsequent events (such as an early settlement) then the problem, at least initially, is between the attorney and the client.
The award approved by the trial court is not justified by this record. Further, the trial court failed to follow the requirements of Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985) made applicable to eminent domain cases by In re Estate of Lester Platt, 16 F.L.W. 237 (Fla. Apr. 4, 1991) in that it failed to first determine the number of hours reasonably expended and also failed to determine a reasonable hourly rate for the attorney. While the actual hours spent by the attorneys and their contractual hourly rate may limit the award,1 the court may not use such time and rate if they exceed the determined reasonable time or hourly rate in order to increase the fee to be paid by a third party. If the court cannot award more than a reasonable fee based on a contractual hourly rate, certainly it cannot do so on the basis of a contractual lump sum amount or, as in this case, a percentage fee.
REVERSED and REMANDED for assessment of fees pursuant to Rowe and Platt.
COBB and PETERSON, JJ., concur. . Orlando Regional Medical Center, Inc. v. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990).
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Dep't of Transp. v. Robbins & Robbins, Inc., 700 So. 2d 782 (Fla. 5th DCA 1997)…ter Park Golf Club, Inc., 687 So. 2d 970 (Fla. 5th DCA 1997). The condemnee is only entitled to fees that are reasonable, Delco, and the condemning authority is not required to pay any more than a reasonable fee, City of Orlando v. Kensington, Ltd., 580 So. 2d 830 (Fla. 5th DCA 1991). Since DOT is required to pay a reasonable fee, the condemnee in this case, whose attorney receives the fee, has no interest in the amount of the fee from DOT. State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla.1993). CONC…
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Seminole Cnty. v. Delco OIL, Inc., 669 So. 2d 1162 (Fla. 5th DCA 1996)…mnation cases, that the place to begin a proper fee calculation should be at the lodestar-like secondary statutory factors. See Parker, 622 So. 2d at 1013; Lee County v. Tohari, 582 So. 2d 104 (Fla. 2d DCA 1991); City of Orlando v. Kensington, Ltd., 580 So. 2d 830 (Fla. 5th DCA 1991). Then the eminent domain equivalent of “the amount involved and the results obtained” Rowe factor, which section 73.092 defines as “benefits obtained,” should be used to adjust that figure up or down. Indeed, the statute requires…
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LEE Cnty. v. Tohari, 582 So. 2d 104 (Fla. 2d DCA 1991)…(Fla.1989). These two factors are then multiplied to determine the basic lodestar fee. Rowe. Contrary to the landowner’s contention, this requirement applies to a fee awarded in an eminent domain proceeding. Quanstrom; City of Orlando v. Kensington, 580 So. 2d 830 (Fla. 5th DCA 1991); see generally In re Platt, 16 F.L.W. S237, S240 (Fla. April 4, 1991). In this case, the order does not fully accomplish this task. Finally, the trial court’s order awarded $25,000 for “the benefit obtained.” The benefit resulti…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Orlando Reg'l Med. Ctr., Inc. v. Boleslaus J. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990)