MICHAEL ZELMAN, PETITIONER,
v.
METROPOLITAN DADE COUNTY, RESPONDENT
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The court held that the trial court's repeated awards of $40-$50 per hour for attorney's fees were unreasonable and determined a higher reasonable rate itself.
[1] An appellate court may determine a reasonable attorney's fee itself when a trial court repeatedly fails to award an appropriate fee despite clear evidence and prior reman…
[2] A trial court's repeated award of an attorney's fee based on an administrative order, despite evidence of a significantly higher reasonable rate and prior appellate rulin…
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Join FLexlaw to unlock all legal intelligenceMichael Zelman represented a capital defendant and sought attorney's fees. After two prior appeals where the trial court set fees at $40-$50 per hour,…
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SCHWARTZ, Chief Judge.
We first considered Michael Zelman’s attorney’s fee claim for his successful court appointed appellate representation of a capital defendant1 in Zelman v. Metropolitan Dade County, 586 So. 2d 1286 (Fla. 3d DCA 1991) (Zelman I). In that case we quashed an allegedly inadequate award upon the holding, in part, that his hourly rate was not limited to the $40.00 per hour for out-of-court services and $50.00 per hour for in-court services established by a trial court administrative order. Zelman, 586 So. 2d at 1287. After the new hearing we ordered to establish “a reasonable hourly rate,” the trial court — notwithstanding that opinion — fixed the rate at $40.00 per hour for out-of-court services and $50.00 per hour for in-court services. Not surprisingly, then, we quashed that order in Zelman v. Metropolitan Dade County, 622 So. 2d 6 (Fla. 3d DCA 1993) (Zelman II). We again remanded for a new hearing to set a reasonable hourly rate using the factors contained in Rule of Professional Conduct 4-1.5.2 Astonishingly enough, that hearing also resulted in an identical award of $40.00 per hour for out-of-eourt services and $50.00 per hour for in-court services. This application for certiorari review of that order is thus Zelman III.
There will be no Zel-man TV.
On the basis of the record — which contains essentially undisputed evidence that a reasonable rate for private representation in the field would be in the range of $175.00 per hour 4 — and our own expertise, see Miller v. First Am. Bank & Trust, 607 So. 2d 483 (Fla. 4th DCA 1992), it is apparent, as we have held on two prior occasions in this very case, that the $40.00-$50.00 rate is not close to a reasonable fee for the difficult and uncommonly burdensome services Zelman performed so well, lin view of the prior unfortunate history of this case, in which we seem to have been so unsuccessful in making ourselves understood, we decline to require still another hearing on the issue in the court below. Rather, as we are authorized, particularly in the present unusual situation, cf. Dalia v. Alvarez, 605 So. 2d 1282 (Fla. 3d DCA 1992); Schreiber v. Palmer, 427 So. 2d 235 (Fla. 3d DCA 1983); Dade County v. Oolite Rock Co., 348 So. 2d 902 (Fla. 3d DCA 1977), cert. denied, 358 So. 2d 133 (Fla.1978), we hereby ourselves determine that Zelman shall be awarded $100.00 per hour for out-of-court services and $125.00 per hour for the in-court services rendered. See Spiers v. Spiers, 160 Fla. 282, 34 So. 2d 434 (1948); Milward v. Milward, 152 Fla. 15, 10 So. 2d 663 (1942). Although we are empowered to render an actual judgment to this effect, see Posner v. Posner, 257 So. 2d 530 (Fla.1972); Sullivan v. Chase Fed. Sav. & Loan Ass’n, 132 So. 2d 343 (Fla. 3d DCA 1961); In re Vermeulen, 122 So. 2d 318 (Fla. 1st DCA 1960), we assume that at least that step will not be required.
Certiorari granted.
. Garcia v. State, 564 So. 2d 124 (Fla. 1990).
. RULE 4-1.5 FEES FOR LEGAL SERVICES (b) Factors to be Considered in Determining Reasonable Fee. Factors to be considered as guides in determining a reasonable fee include:
(1) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;
(4) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;
(5) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and (8) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client's ability to pay rested to any significant degree on the outcome of the representation.
. Zelman has also filed a motion to enforce the previous mandates in Zelman I and II. The motion was heard with this petition for writ of certiorari.
. The county's contrary showing consisted of testimony that it had never previously paid more than $40.00-$50.00 per hour and that an hourly computation of the salaries paid assistant public defenders for doing the same work yielded even lower amounts. We consider that neither category of evidence is probative of the sole issue involved here — the reasonable value of Zelman's services.
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Sheppard & White, P.A. v. The City OF Jacksonville, 751 So. 2d 731 (Fla. 1st DCA 2000)…s upon White v. Board of County Comm’rs of Pinellas County, 537 So. 2d 1376 (Fla.1989); Makemson v. Martin County, 491 So. 2d 1109 (Fla.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 908, 93 L.Ed.2d 857 (1987); and Zelman v. Metropolitan Dade County, 645 So. 2d 57 (Fla. 3d DCA 1994). We cannot agree with petitioner that these cases are authority for the trial court to exceed the fixed rate in the instant case. Section 925.036(2)(e), Florida Statutes (1997), establishes a cap for representation on appeal at $…
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Hearns v. State, 117 So. 3d 454 (Fla. 3d DCA 2013)…r possession of a firearm by a violent career criminal” [VCC]!5 This has got to and will stop. We will not engage in another futile endeavor to give the lower court still another opportunity to follow the law. See Zelman v. Metropolitan Dade County, 645 So. 2d 57 (Fla. 3d DCA 1994). Instead, we ourselves hereby vacate the conviction and sentence below and directly order, as permitted by section 924.35, Florida Statutes (2009), that Hearns be found guilty and convicted of the lesser included offense of posses…
Authorities Cited (13 total)
- Sari Posner v. Posner, 257 So. 2d 530 (Fla. 1972)
- Miller v. First Am. Bank & Tr., 607 So. 2d 483 (Fla. 4th DCA 1992)
- Garcia v. State, 564 So. 2d 124 (Fla. 1990)
- Matter of the Petition for Adoption of an Infant by Richard T. Vermeulen and Lucille P. Vermeulen. Anson A. Carrier v. Vermeulen, 122 So. 2d 318 (Fla. 1st DCA 1960)
- Dalia v. Alvarez, 605 So. 2d 1282 (Fla. 3d DCA 1992)
- Dade Cnty. v. Oolite Rock Co., 348 So. 2d 902 (Fla. 3d DCA 1977)
- Zelman v. Metro. Dade Cnty., 586 So. 2d 1286 (Fla. 3d DCA 1991)
- Schreiber v. Palmer, 427 So. 2d 235 (Fla. 3d DCA 1983)
- Delano Hotel, Inc. v. City OF Miami Beach, 160 Fla. 282 (Fla. 1948)
- George J. Sullivan C.T.A of the Estate of Mary E. Sutton Sullivan v. Chase Fed. Sav. & Loan Ass'n, 132 So. 2d 343 (Fla. 3d DCA 1961)