DENNIS P. WARREN, APPELLANT,
v.
DEPARTMENT OF ADMINISTRATION, APPELLEE
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In this second appeal, the court reviewed the hearing officer's calculation of attorney's fees awarded to Warren following his successful initial appeal against the Department of Administration's denial of insurance coverage. The court approved the hourly rate and hours expended but struck the lodestar multiplier enhancement, reducing the fee award from $8,812.50 to $5,450.
The court approved the finding of 43.6 hours at $125 per hour but disapproved the 1.5 lodestar multiplier because the record contained no evidence justifying the enhancement. The correct attorney's fees on appeal should be $5,450 (43.6 hours × $125/hour × 1.0 multiplier).
[1] A lodestar multiplier for attorney's fees may not be applied without evidence justifying the enhancement.
[2] Failure to raise an issue on a prior appeal renders that issue the law of the case, precluding its later review.
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“we expressly disapprove the use of the Rowe multiplier because the record before us fails to contain any evidence justifying the enhancement”
Establishes that lodestar multipliers require evidentiary support in the record
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Join FLexlaw to unlock all legal intelligenceWarren previously appealed the Department's final order denying insurance coverage for his hospitalization surgery expenses. In that first appeal, War…
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PER CURIAM.
This is the second appearance of these parties before this court. In Warren v. Department of Administration, 554 So. 2d 568 (Fla. 5th DCA 1989), Warren successfully appealed the Department’s final order holding that Warren was not covered under the state insurance plan for expenses incurred when he was hospitalized for surgery. This court granted Warren’s motion for attorney’s fees on appeal and remanded the cause to the hearing officer of the Division of Administrative Hearing to “determine and assess reasonable attorney’s fees for this appeal.” This order, entered December 28, 1989 during the July 1989 term of court, was not challenged by the Department and is final.
Upon remand, the hearing officer held an evidentiary hearing and determined the appropriate amount of attorney’s fees for the appeal phase to be $8,812.50. The basis for the hearing officer’s decision was his finding that Warren’s attorney reasonably expended 43.6 hours at a rate of $125 per hour. The hearing officer then determined a “lodestar” multiplier of 1.5 was appropriate. Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985).
We approve the finding as to the number of hours and the hourly rate, but expressly disapprove the use of the Rowe multiplier because the record before us fails to contain any evidence justifying the enhancement. Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla.1990); State Farm Mutual Automobile Insurance Company v. Cedolia, 571 So. 2d 1386 (Fla. 4th DCA 1990); Travelers Indemnity Company v. Duffy’s Little Tavern, Inc., 541 So. 2d 689 (Fla. 5th DCA 1989).
We therefore find the correct calculation for attorney’s fees on appeal to be $5,450. As corrected, we approve the hearing officer’s finding and modify the order below to award Warren attorney’s fees in the amount of $5,450.
Warren also asks this court to review the correctness of the trial court’s denial of his motion for attorney’s fees incurred from the commencement of the administrative claim until the Department’s final order.
However, because Warren’s motion for those fees was originally denied prior to his initial appeal and Warren did not raise the propriety of the denial in his initial appeal, the trial court’s determination became the law of the case. See Marine Midland Bank Central v. Cote, 384 So. 2d 658, 659 (Fla. 5th DCA 1980) (“If no appeal is taken on one point but the case is appealed on another point, then the first point becomes ‘law of the case’ and upon a reversal that law of the case remains as correct and cannot be revisited.”).
Any argument Warren may have had regarding attorney’s fees was waived by his failure to raise the issue in his original appeal. Further, this court’s remand was for the limited purpose of determining the amount of attorney’s fees for the appeal. Remand for a specific act does not reopen the entire case; the lower tribunal only has the authority to carry out the appellate court’s mandate. Florida Power and Light v. Flichtbeil, 513 So. 2d 1078 (Fla. 5th DCA 1987), review denied sub nom. Miller v. Florida Power and Light, 520 So. 2d 585 (Fla.1988); Marine Midland Bank Central, supra.
AFFIRMED as corrected.
GOSHORN, C.J., PETERSON and GRIFFIN, JJ., concur.
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Josephthal Lyon & Ross, Inc. v. Durham, 734 So. 2d 487 (Fla. 5th DCA 1999)…Regional Medical Center, Inc. v. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990), rev. denied, 583 So. 2d 1034, 1036 (Fla.1991). Accordingly, we modify the judgment to reflect a reasonable fee of $9,197.36. See Warren v. [*490] Department of Admin., 590 So. 2d 514 (Fla. 5th DCA 1991). AFFIRMED AS MODIFIED. COBB and GOSHORN, JJ., concur. . Chapter 517, Florida Statutes. . The trial court correctly found that the arbitration panel lacked authority to award Durham attorney’s fees. See Turnberry Assoc. v. Ser…
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United States Sec. Ins. Co. v. Lapour, 617 So. 2d 347 (Fla. 3d DCA 1993)…ier not appropriate in case where claim was patently frivolous). Because the parties have not disputed the lodestar amount, we hereby modify the judgment to award attorney’s fees in the amount of 11,95o.1 See Warren v. Department of Administration, 590 So. 2d 514, 515 (Fla. 5th DCA 1991). Affirmed as modified. . This figure represents a deduction of 15 minutes time ($50) ordered by the trial court due to a procedural error regarding one document prepared by the insured's attorney.…
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Worobec v. Morse, 722 So. 2d 227 (Fla. 5th DCA 1998)…e of this ease. See R. Regulating Fla. Bar 4-1.5(f). As such, use of a contingency risk multiplier to calculate a reasonable fee was error. We therefore modify the judgment to reflect a reasonable fee of $20,-355. See Warren v. Department of Admin., 590 So. 2d 514 (Fla. 5th DCA 1991). AFFIRMED AS MODIFIED. DAUKSCH and HARRIS, JJ., concur.…
Authorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)
- Marine Midland Bank Cent. v. Cote, 384 So. 2d 658 (Fla. 5th DCA 1980)
- Warren v. Dep't OF Admin., 554 So. 2d 568 (Fla. 5th DCA 1989)
- Florida Power AND Light v. Reinhold Flichtbeil, 513 So. 2d 1078 (Fla. 5th DCA 1987)
- State Farm Mut. Auto. Ins. Co. v. Cedolia, 571 So. 2d 1386 (Fla. 4th DCA 1990)
- Zawadski v. Palm Beach Cnty. Sch. Bd., 541 So. 2d 689 (Fla. 4th DCA 1989)
- The Travelers Indem. Co. v. Duffy's Little Tavern, Inc., 541 So. 2d 689 (Fla. 5th DCA 1989)