THE POMPANO LEDGER, INC., APPELLANT,
v.
THE GREATER POMPANO BEACH CHAMBER OF COMMERCE, INC., AL SEIFERT AND KAY MCGINN, APPELLEES
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The Pompano Ledger challenged a summary judgment in a defamation and tortious interference case and an attorney's fee award that included a contingency risk multiplier. The appellate court affirmed the summary judgment but reversed the fee award, holding that a contingency multiplier was improper because there was no actual contingency fee agreement and no risk of nonpayment since an insurance company was paying the fees.
The court affirmed the summary judgment but reversed the attorney's fee award insofar as it applied a contingency risk multiplier. A contingency multiplier should not be applied when there is no contingency fee agreement, no risk of nonpayment, and attorneys are paid on an hourly basis by an insurance company.
[1] A contingency risk multiplier may not be applied to attorney's fees awarded under section 57.105, Florida Statutes, when there is no contingency fee agreement and no risk…
[2] The application of a contingency risk multiplier requires consideration of whether the relevant market necessitates such a multiplier to obtain competent counsel, whether…
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 determination of whether to apply a contingency risk multiplier requires three considerations: (1) the relevant market requires a contingency risk multiplier in order to obtain competent counsel; (2) the attorney was unable to mitigate the risk of nonpayment in any other way; and (3) use of a multiplier is justified based on factors such as the amount of the risk involved, the result obtained, and the type of fee arrangement between the attorney and client.”
Establishes the three-factor test for determining whether a contingency risk multiplier may be applied in attorney's fee awards under section 57.105.
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Join FLexlaw to unlock all legal intelligenceThe Pompano Ledger brought a cause of action for defamation and intentional interference with a business relationship against the Greater Pompano Beac…
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WARNER, J.
Appellant challenges a final summary judgment and an award of attorney’s fees in a cause of action for defamation and intentional interference with a business relationship. We affirm the final summary judgment but reverse the order applying a contingency risk multiplier to an award of attorney’s fees to appellee (“defendant”) entered pursuant to section 57.105, Florida Statutes (2000).
Although we approve the authority of the court to award fees under this section in this case, the trial court applied a contingency fee multiplier to enhance the fee award. There was no contingency fee agreement between the defendants and their attorneys. Most of the bills presented indicate the fees were billed to an insurance company which was undertaking the defense. The sole agreement was to pay on an hourly basis for services rendered. No risk of nonpayment was present. In Wolfe v. Nazaire, 758 So. 2d 730, 733 (Fla. 4th DCA 2000), we disapproved the application of a contingency risk multiplier to fees awarded to a defendant in a negligence case based upon section 57.105. We noted that the determination of whether to apply a contingency risk multiplier requires three considerations:
(1) the relevant market requires a contingency risk multiplier in order to obtain competent counsel; (2) the attorney was unable to mitigate the risk of nonpayment in any other way; and (3) use of a multiplier is justified based on factors such as the amount of the risk involved, the result obtained, and the type of fee arrangement between the attorney and client.
Id. (emphasis added). Similarly, in Trans-florida Bank v. Miller, 576 So. 2d 752 (Fla. 4th DCA 1991), we noted that a significant factor supporting application of a multiplier under section 57.105(1) is “whether contingency agreements are customarily used in the type of circumstance involved and whether there is support in the record for a conclusion that the prevailing party would otherwise be unable to afford competent counsel.” Id. at 753 (citing Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 834-35 (Fla.1990)); accord Simmons v. Royal Floral Distributs., Inc., 724 So. 2d 99, 99 (Fla. 4th DCA 1998).
Applying these factors to the instant case, no contingency risk multiplier should have been applied. No evidence was present that the attorneys were unable to mitigate the risk of nonpayment in any other way. In fact, there was no risk of nonpayment. The insurance company was paying the attorney’s fees. See Wolfe, 758 So. 2d at 734 (Farmer, J., concurring). Because there was no risk of nonpayment and the fee arrangement was strictly an agreement to pay fees on an hourly basis, the use of a multiplier was not justified. See id.
We affirm the final judgment, reverse the award of attorney’s fees, and remand for entry of an award of attorney’s fees without application of the fee multiplier. POLEN, C.J. and GUNTHER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Monette Klein O'Grady v. Irwin Potash, 824 So. 2d 904 (Fla. 3d DCA 2002)…equities of a situation as a consideration under section 57.105. Thus, the fact that O’Grady was indemnified has no bearing on the determination of her entitlement to fees. See Pompano Ledger, Inc. v. Greater Pompano Beach Chamber of Commerce, Inc., 802 So. 2d 438 (Fla. 4th DCA 2001)(disapproving multiplier, but approving award of fees under 57.105, not [*906] withstanding that fees were paid by insurance company/indemnitor). See also Debra, Inc. v. Orange County, 445 So. 2d 404 (Fla. 5th DCA 1984)(concluding…
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Compass Constr., Inc. v. First Baptist Church OF Cape Coral, 61 So. 3d 1273 (Fla. 2d DCA 2011)…We find the view expressed by Judge Farmer in his special concurring opinion to be better reasoned. Shortly after Wolfe was decided, the Fourth District considered the case of Pompano Ledger, Inc. v. Greater Pompano Beach Chamber of Commerce, Inc., 802 So. 2d 438 (Fla. 4th DCA 2001). In that case, the Fourth District reversed an attorney’s fee order applying a contingency risk multiplier where the fee award was entered under section 57.105, Florida Statutes (2000). Citing the factors outlined in Bell and quo…
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Wesson v. Fla. Peninsula Ins. Co. (Fla. 1st DCA 2020)…2) (finding attorney mitigated his risk of nonpayment when attorney and client renegotiated their fee and cost arrangement after first trial ended in adverse directed verdict); Pompano Ledger, Inc. v. Greater Pompano Beach Chamber of Commerce, Inc., 802 So. 2d 438, 439 (Fla. 4th DCA 2001) (finding there was no risk of nonpayment where the insurance company was paying the attorney’s fees); Wolfe v. Nazaire, 758 So. 2d 730, 734 (Fla. 4th DCA 2000) (finding there was no “risk of nonpayment” in the fee agreement…
Authorities Cited
- Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)
- Trishia Wolfe v. Nazaire, 758 So. 2d 730 (Fla. 4th DCA 2000)
- Transflorida Bank v. Miller, 576 So. 2d 752 (Fla. 4th DCA 1991)
- Simmons v. Royal Floral Distribs., Inc., 724 So. 2d 99 (Fla. 4th DCA 1998)