CARIDAD GONZALEZ, ETC., APPELLANT,
v.
ANGEL VELOSO, M.D., ET AL., APPELLEES
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Caridad Gonzalez appeals an award of attorney's fees in a medical malpractice wrongful death case, challenging the trial court's rejection of a multiplier on the lodestar fee and denial of expert witness fees. The Florida Third District Court of Appeal affirms, holding that the stipulated lodestar fee was appropriate and that denying the multiplier and expert witness fees was not an abuse of discretion.
The court affirmed both rulings. The multiplier was properly rejected because the lodestar fee of $69,000 was considerably more than the contingency fee agreed upon ($59,096.39), and the record did not establish that the prevailing party would have been unable to afford competent counsel without a multiplier. The denial of expert witness fees was not an abuse of discretion.
[1] A contingency fee multiplier is properly rejected when the relevant market does not require it to obtain competent counsel.
[2] A court is not required to state the reasons for rejecting a contingency fee multiplier when the lodestar fee is not adjusted.
Previewing 2 of 3 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 relevant market [did not require] a contingency fee multiplier to obtain competent counsel”
Establishes the test for rejecting a contingency fee multiplier under Standard Guarantee Insurance Co. v. Quanstrom
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Join FLexlaw to unlock all legal intelligenceGonzalez pursued a medical malpractice wrongful death action against Dr. Angel Veloso. The defendants made a $55,000 offer of judgment, which was not …
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SCHWARTZ, Chief Judge.
The plaintiff below appeals from an order on her application for attorney’s fees under the offer of judgment statute, section 768.79, Florida Statutes (1997),1 for the trial and appellate services of her counsel in the medical malpractice action for the wrongful death of her husband we considered in Gonzalez v. Veloso, 702 So. 2d 1366 (Fla. 3d DCA 1997) and Veloso v. Gonzalez, 718 So. 2d 325 (Fla. 3d DCA 1998). She challenges the lower court’s rulings that rejected her claim to a multiplier and denied expert witness fees for the attorneys who testified on her behalf at the hearing. We affirm in both respects.
As in Simmons v. Royal Floral Distributors, Inc., 724 So. 2d 99 (Fla. 4th DCA 1998), we conclude that when, as was the case below, the court could properly have found that “the relevant market [did not require] a contingency fee multiplier to obtain competent counsel,”2 Standard Guar. Ins. Co. v. Quanstrom, 555. So. 2d 828, 834 (Fla. 1990), the multiplier request was properly rejected in favor of an award “simply” of the stipulated lodestar fee of $69,000.00—which we note, was much more than the $59,096.39 contingency fee (45% of the recovery, of $131,325.33) to which the plaintiff and her lawyer agreed. Askowitz v. Susan Feuer Interior Design, Inc., 563 So. 2d 752 (Fla. 3d DCA 1990), review denied, 576 So. 2d 292 (Fla. 1991), is squarely on point:
[T]here [is no] evidence in the record that the prevailing party would otherwise have been unable to afford competent counsel. Consideration of the additional standards enunciated in Florida Patients[Patient’s] Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), lends little support to the enhancement since the lodestar figure represents the market rate, and is considerably more than what was provided for by the private arrangement between the prevailing party and its attorney ... there is no evidentiary basis for applying the contingency risk multiplier. Askowitz, 563 So. 2d at 754.
Neither do we agree with the appellant’s contention, supported by Loper v. Allstate Ins. Co., 616 So. 2d 1055 (Fla. 1st DCA 1993), that the order below is reversibly defective because it does not explicate the reasons for rejecting the multiplier. In our view, Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), which controls (and upon which Lop-er itself primarily relies), imposes no such requirement when the lodestar figure is not adjusted in either direction. Rowe, 472 So. 2d at 1151 (“If the court decides to adjust the lodestar, it must state the grounds on which it justifies the enhancement or reduction.”), [emphasis supplied.]
Finally, the denial of the plaintiffs expert witness fees was not an abuse of discretion. Travieso v. Travieso, 474 So. 2d 1184, 1186 (Fla. 1985); U.S. Fidelity & Guar. Co. v. Rosado, 606 So. 2d 628 (Fla. 3d DCA 1992); Orlando Regional Medical Center v. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990), rev. denied, 583 So. 2d 1034 (Fla. 1991).
Affirmed.
. The appellees did not accept a $55,000 offer of judgment. The eventual award was $131,-325.33.
. Quaere: Whether any such showing can ever be made, and thus whether a multiplier is ever appropriate, when fees are awardable only when a reasonable offer is not accepted under § 768.79, an eventuality which obviously cannot be anticipated when counsel is obtained.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Sarkis v. Allstate Ins. Co., 863 So. 2d 210 (Fla. 2003)…768.79, that statute will necessarily shift the value of lawsuits in favor of the plaintiff. Doyle-Vallery, 838 So. 2d at 1198-99 (Altenbernd, J., concurring) (footnote omitted). In 1999, the Third District Court of Appeal, in Gonzalez v. Veloso, 731 So. 2d 63 (Fla. 3d DCA 1999), affirmed a trial court’s denial of a multiplier in a case in which the plaintiffs offer of judgment exceeded the section 768.79 twenty-five-percent requirement. In writing for the court, Judge Schwartz stated: “[Tjhere [is no] ev…
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Allstate Ins. Co. v. Sarkis, 809 So. 2d 6 (Fla. 5th DCA 2001)…that legal community) without the availability of the multiplier. The problem is this court has yet to see a case in which such a showing has been made to the satisfaction of the appellate panel. As Chief Judge Schwartz said in Gonzalez v. Veloso, 731 So. 2d 63 (Fla. 3d DCA 1999), such a showing is logically problematic: Quaere: Whether any such showing can ever be made, and thus whether a multiplier is ever appropriate, when fees are awardable only when a reasonable offer is not accepted under section 76…
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Trishia Wolfe v. Nazaire, 758 So. 2d 730 (Fla. 4th DCA 2000)…arrangement between attorney and client. Bell, 734 So. 2d at 412 (citation omitted). If the court decides to adjust the lodestar, it must state the grounds on which it justifies the enhancement or reduction. See Giltex; see also Gonzalez v. Veloso, 731 So. 2d 63, 64 (Fla. 3d DCA 1999). In this case, while there is no transcript of the fee hearing, it is clear from the face of the order, that the trial court did not explain its reasons for the use of a multiplier. In addition, the order taxing fees specific…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985)
- Orlando Reg'l Med. Ctr., Inc. v. Boleslaus J. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990)
- Loper v. Allstate Ins. Co., 616 So. 2d 1055 (Fla. 1st DCA 1993)
- Askowitz v. Susan Feuer Interior Design, Inc., 563 So. 2d 752 (Fla. 3d DCA 1990)
- United States Fid. & Guar. Co. v. Rosado, 606 So. 2d 628 (Fla. 3d DCA 1992)
- Simmons v. Royal Floral Distribs., Inc., 724 So. 2d 99 (Fla. 4th DCA 1998)
- Gonzalez v. Angel Veloso, M.D., 702 So. 2d 1366 (Fla. 3d DCA 1997)
- Angel Veloso, M.D. v. Gonzalez, 718 So. 2d 325 (Fla. 3d DCA 1998)