ANDREW MARSHALL, APPELLANT,
v.
CITY OF MIAMI, DEPARTMENT OF CONVENTIONS & MARINAS AND GALLAGHER BASSETT SERVICES, APPELLEES
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A workers' compensation claimant appealed a judge's award of attorney's fees, challenging both the hourly rate and the number of hours deducted. The Florida appellate court reversed, finding the judge improperly selected an hourly rate unsupported by evidence and arbitrarily reduced the claimed hours without justification.
The judge erred in two respects: (1) the hourly rate of $150.00 was unsupported by evidence when the only evidence established $275.00 as the customary rate, and (2) the 20-hour reduction was not supported by competent substantial evidence and appeared to rest on the judge's subjective beliefs rather than factual findings.
[1] A judge of compensation claims errs in determining the customary hourly rate for legal services when the rate chosen is unsupported by competent substantial evidence.
[2] Reductions in attorney hours for which fees are sought are improper when not supported by competent substantial evidence and appear to rest on the judge's subjective beli…
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Join FLexlaw to unlock all legal intelligence“the judge may not choose an hourly rate unsupported by any evidence”
Establishes that hourly rate determinations must be supported by competent substantial evidence
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Join FLexlaw to unlock all legal intelligenceThe judge of compensation claims awarded attorney's fees of $7,770.00 using section 440.34(1) factors. The only evidence presented established a custo…
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PER CURIAM.
In this workers’ compensation case, claimant seeks review of a final order awarding attorney’s fees for services rendered by his attorney. The judge of compensation claims determined that claimant’s attorney was entitled to a greater fee than that which would result from application of the statutory formula found in section 440.34(1), Florida Statutes (2001).
Accordingly, applying the factors listed in that subsection, the judge arrived at a fee of $7,770.00.
We agree with claimant that the judge erroneously determined that “[t]he fee customarily charged in the locality for similar legal services” was $150.00 per hour, when the only evidence presented was that the customary hourly rate would be $275.00. See Morris v. Dollar Tree Store, 869 So. 2d 704, 706-07 (Fla. 1st DCA 2004) (the standard of review from a determination of a reasonable hourly rate for an attorney’s fee is whether the determination is supported by competent substantial evidence and, therefore, the judge may not choose an hourly rate unsupported by any evidence); Smith v. U.S. Sugar Corp., 624 So. 2d 315, 319 (Fla. 1st DCA 1993) (reversing an attorney-fee award based on a $150.00 hourly rate when the only evidence established that $200.00 would be a reasonable rate, and remanding with directions to award fees at the rate of $200.00 per hour).
We agree also that the judge erroneously deducted 20 unspecified hours from those identified by claimant’s attorney. See Sanchez v. Woemer Mgmt., Inc., 867 So. 2d 1173, 1174-75 (Fla. 1st DCA 2004) (reversing reductions in hours identified by claimant’s attorneys as reasonably expended because the reductions were not supported by competent substantial evidence but, instead, “appear[ed] to rest entirely upon the JCC’s subjective belief and personal experience of what to him seemed reasonable”). Accord Smith, 624 So. 2d at 318. Claimant’s remaining arguments merit neither discussion nor reversal.
We reverse that portion of the “Amended Order on Verified Petition for Attorney’s Fees and Costs” which awarded attorney’s fees of $7,700.00 and remand with directions that the judge enter a new order awarding $19,415.00 (computed by multiplying the customary rate of $275.00 per hour by 70.6 hours reasonably expended).
REVERSED and REMANDED, with directions.
WEBSTER, BROWNING and POLSTON, JJ., concur.
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Hale v. Shear Express, Inc., 946 So. 2d 94 (Fla. 1st DCA 2006)…nded because the reductions were not supported by competent substantial evidence but, instead, “appealed] to rest entirely upon the JCC’s subjective belief and personal experience of what to him seemed reasonable”). Accord Marshall v. City of Miami, 920 So. 2d 107, 108 (Fla. 1st DCA 2006); Morris v. Dollar Tree Store, 869 So. 2d 704, 706-07 (Fla. 1st DCA 2004); Smith v. U.S. Sugar Corp., 624 So. 2d 315, 319 (Fla. 1st DCA 1993). In this regard, we reiterate that unsworn responses and arguments of counsel are n…
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Jackson v. Ryan's Fam. Steak House & Zurich-American Ins., 27 So. 3d 90 (Fla. 1st DCA 2009)…t 1061 (Fla.2008). On numerous occasions, this Court has restricted JCCs from relying on subjective beliefs and non-record evidence when determining the reasonableness of attorney’s fees. See Marshall v. City of Miami Dep’t of Conventions & Marinas, 920 So. 2d 107 (Fla. 1st DCA 2006) (prohibiting JCC from setting hourly rate of attorney’s fees where no record evidence supported JCC’s finding); Sanchez v. Woerner Mgmt., Inc., 867 So. 2d 1173, 1174-75 (Fla. 1st DCA 2004) (reversing fee award where reduction of…
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Neville v. J.C. Penney Corp., 135 So. 3d 525 (Fla. 1st DCA 2014)…pear to rest entirely upon the JCC’s subjective belief and personal experience of what to him seemed reasonable for the amount of time represented by counsel in serving his client.” In Marshall v. City of Miami, Department of Conventions & Marinas, 920 So. 2d 107, 108 (Fla. 1st DCA 2006), this Court determined the JCC erred in finding $150 per hour was a reasonable hourly rate when the testimony supported only a finding that $275 per hour was reasonable, and the JCC further erred in deducting 20 hours for un…
Authorities Cited
- Sanchez v. Woerner Mgmt., 867 So. 2d 1173 (Fla. 1st DCA 2004)
- Morris v. Dollar Tree Store & Specialty Risk Servs., 869 So. 2d 704 (Fla. 1st DCA 2004)
- Smith v. U.S. Sugar Corp. & Gallagher Bassett Serv., 624 So. 2d 315 (Fla. 1st DCA 1993)