FRANK DALIA, APPELLANT,
v.
MICHELLE B. ALVAREZ, TRUSTEE, APPELLEE

Fla. 3d DCA | 1992-03-17
No. 91-45
Before FERGUSON, JORGENSON and COPE, JJ.
605 So. 2d 1281 Florida District Court of Appeal, Third District (1992) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

This case addresses the reasonableness of an attorney's fee award for appellate work. The court found that the appellee's requested fee of $10,000 for defending a straightforward second appeal was excessive and reversed the award, limiting it to $5,000.


Holding

The court held that the $10,000 fee award was excessive and reversed, remanding with instructions to award appellate fees in an amount not to exceed $5,000, finding that an experienced attorney could have handled the case in one-half the time claimed.


Headnotes

[1] An award of attorney's fees for appellate services may be deemed excessive if the claimed hours and rates are not commensurate with the complexity of the appeal and the a…

[2] When determining the reasonableness of attorney's fees for appellate work, the appellate court may consider the appellate record, briefs, oral arguments, and its own reco…

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

Key Quotes

“We agree with the appellant that the award of $10,000 in fees for defending this uncomplicated second appeal is excessive.”

Establishes the court's core holding that the fee award was excessive

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The appellant challenged an award of $10,000 in attorney's fees for the appellee's appellate defense work. The fee calculation was based on approximat…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

This case is before the court for the third time. In the first appeal we reversed a judgment awarding the appellee attorney’s fees pursuant to section 57.105, Florida Statutes (1989), on a holding that the appellant’s third-party complaint was not frivolous. Dalia v. Duda, 576 So. 2d 868 (Fla. 3d DCA 1991). In the second appeal, we affirmed, without an opinion, a summary judgment for the appellee on her claim for recovery of an escrow deposit and an award of fees as the prevailing party. The case was remanded for an award of fees for appellate services.

We agree with the appellant that the award of $10,000 in fees for defending this uncomplicated second appeal is excessive. Most telling in the inflated itemization of work performed is the claimed two hours and forty-five minutes spent educating the client about the case (in which she participated), and appellate proceedings generally, notwithstanding that the client is an attorney. Also revealing is that the fee for the trial court representation was only $8,625.29.

Four hours and forty-five minutes are claimed, under oath, for reading the appellant’s fourteen-page reply brief; four and one-half hours are claimed for oral argument preparation; and three and one-half hours are claimed for reading and “research” of the motion for rehearing. Five hours of service is claimed for a motion to strike the appellant’s brief — which was denied; one and a quarter hours is claimed for preparing a motion for extension of time to file a brief and for clarification of the order denying the motion to strike appellant’s brief — which was also denied.

The alleged “excessive” award is precisely that requested by the appellee based on approximately fifty-four hours of legal work.1 No contention is made that the court based its decision on anything other than the appellee’s motion for fee and the supporting affidavits of experts. All that is missing, as the dissent notes, is the testimony of the experts in support of the affidavits. The issue before us was necessarily raised in the trial court by the affidavit of the appellant showing that the value of the services was no more than $4,500, and the appellee’s affidavit valuing the services at $10,000.

In this dispute, as to what constitutes an appropriate attorney’s fee for appellate work, the best evidence is the appellate record, briefs of the parties, the court’s recollection of the oral arguments, and the opinion of the appellate court.2 On the basis of the foregoing we conclude that there was nothing complex about the case that an experienced attorney could not have handled in one-half the time claimed. See R.H. Coody & Assocs., Inc. v. Shelton, 352 So. 2d 852 (Fla.1977); Schreiber v. Palmer, 427 So. 2d 235 (Fla. 3d DCA 1983); Guthrie v. Guthrie, 357 So. 2d 247 (Fla. 1st DCA 1978).

Accordingly, we reverse and remand with instructions to award appellate fees in an amount not to exceed $5000.

. Nine thousand dollars was awarded for the appeal and $1,000 was awarded for the hearing on the motion for appellate fees.

. In past years this court would fix the' amount of fees based on the same evidence. Although the practice has been discontinued, from the same evidence we may determine that an attorney’s fee for appellate work is grossly excessive.

Dissent
COPE, Judge

COPE, Judge

(dissenting).

I respectfully dissent. While I share the panel’s questions about the items referred to in the majority opinion, the appellant has failed to provide us a transcript of the evidentiary hearing on attorney’s fees, or alternatively a statement of proceedings. See Fla.R.App.P. 9.200(b)(4); see also id. 9.200(a)(3). The most the appellant is entitled to at this point is an opportunity to supply the omitted parts of the record, id. 9.200(f)(2), failing which review should be denied. See Applegate v. Barnett Bank, 377 So. 2d 1150, 1152 (Fla.1979). We have no way of knowing, for example, whether the argument made here was presented in the trial court; what the evidence was; and whether appellant made some concession below which was fatal to his position. See id. The record before us is insufficient for review.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Miller v. First Am. Bank & Tr., 607 So. 2d 483 (Fla. 4th DCA 1992)
    …serted number of hours, Johnson would have had to work 162 five-day weeks consisting of seven-hour days on the three loans exclusively. We find this representation to be highly improbable. Id. at 688-89 (citations omitted). Accord Dalia v. Alvarez, 605 So. 2d 1281 (Fla. 3d DCA 1992)6; In re Estate of Simon, 402 [*486] So. 2d 26 (Fla. 3d DCA 1981)7, appeal after remand, 427 So. 2d 235 (Fla. 3d DCA 1983)8; see also Villas of St. George v. Newton, 531 So. 2d 1051 (Fla. 1st DCA 1988). Without further belaboring…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw