MICHAEL D. RUDOLPH

v.

DARIEN SMITH, THE HOME DEPOT U.S.A., INC. AND LIBERTY MUTUAL INSURANCE COMPANY

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2022-1627 _____________________________

MICHAEL D. RUDOLPH,

Appellant,

v.

DARIEN SMITH, THE HOME

DEPOT U.S.A., INC., and LIBERTY MUTUAL INSURANCE COMPANY,

Appellees. _____________________________

On appeal from the Office of the Judges of Compensation Claims. Edward R. Almeyda, Judge.

Date of Accident: October 29, 1993.

January 24, 2024

RAY, J.

This is an appeal from a final order on attorney’s fees in a workers’ compensation case in which the judge of compensation claims (“JCC”) awarded fees to the claimant’s attorney based on a customary hourly rate instead of the contingency fee amount agreed to by the claimant and his attorneys. Because there were no exceptional circumstances that would justify a reduction in the presumptively reasonable fee set by statute, we reverse.

1 At all times relevant to this appeal, the claimant acted through his power of attorney, Linda McCoy.

2 Recognizing that the JCC’s order may have created a conflict of interest between Rudolph and his client, Rudolph moved to withdraw from the case, leaving the claimant unrepresented.³ After acting on Rudolph’s motion for rehearing and to vacate and reopen the case, Judge Almeyda recused himself. The case was eventually reassigned to Judge Medina-Shore. Rudolph again moved to vacate and reopen the case, which was also denied by Judge Medina-Shore.

6

III

Rudolph argues, in part, that the order must be reversed because the JCC placed undue reliance on a customary hourly rate in departing from the agreed-upon fee amount and failed to consider that the “customary fee” is in fact a percentage of the settlement and not based on an hourly rate. He also submits that there is a lack of record evidence to support the JCC’s findings on the other factors. In all, he contends there are no exceptional circumstances that would warrant a downward departure from the guideline fee amount, much less a departure from a less-thanguideline amount. We agree. This case is like Alderman. There, this Court determined that the JCC erred in departing downward from the presumptive fee set by statute given that the departure was based primarily on her view that the presumptive fee was excessive given the customary hourly rate. Alderman, 805 So. 2d at 1101. In concluding that the JCC placed undue reliance on the customary hourly rate, we explained that a JCC “may properly consider the fee customarily charged in the locality for similar legal work,” but this factor could not “provide the sole basis for a departure, particularly if the customary fee is based on an hourly rate.” Id. at 1100. We reasoned that “[a] decision to displace the statutory calculation with a fee based on hourly rate would effectively defeat the contingent fee arrangement implemented by the statute.” Id.; see also Smith v. Gulf Coast Hosp., 31 So. 3d 297, 297 (Fla. 1st DCA 2010) (concluding that the JCC abused her discretion by awarding attorney’s fees based on the customary hourly rate rather than on the fee schedule set by statute); Okaloosa Cnty. Gas Dist. v. Mandel, 394 So. 2d 453, 454 (Fla. 1st DCA 1981) (explaining that “to judge the excessiveness of the award solely on the basis of its per hour rate would be to improperly ignore the new sliding scale provisions in the statute”). The JCC made the same error here. For starters, the only evidence of the “fee customarily charged in the community” for this type of case was the statutory guideline fee and not an hourly rate. What is more, the JCC’s hyperfocus on a reasonable hourly rate reduced the fee analysis to nothing more than a simple mathematical formula (hourly rate x number of hours) and strayed

7 from the contingent fee arrangement inherent in the statute. Lost in the JCC’s well-intentioned calculation was any recognition that the stipulated fee amount was already substantially less than what the statute deemed as presumptively fair. Nor was there competent substantial evidence to support the JCC’s findings that “the time spent was low,” the “expertise to settle a case is not as great as the predecessor attorneys in this case that had to contend with novel and severe issues involving the health of a quadriplegic,” and that reducing future benefits to a lump sum is a “minimal” benefit “compared to obtaining a denied benefit after litigation.” A judge of compensation claims must rely on evidence instead of his own “subjective belief and personal experience” in evaluating the reasonableness of an attorney’s fee claim. Sanchez v. Woerner Mgmt., Inc., 867 So. 2d 1173, 1174–75 (Fla. 1st DCA 2004) (reversing fee award where reduction of time was not supported by competent substantial evidence but, instead, based on the JCC’s subjective belief and personal experience as to what was reasonable). Here, all the evidence on this matter was that both the fee amount claimed by Rudolph and the less-thanguideline global fee amount were reasonable. For these reasons, we reverse the award of attorney’s fees and remand with directions that the JCC award Rudolph the stipulated amount of $805,000, which is less than the guideline fee and the amount that the evidence established is reasonable. REVERSED and REMANDED. ROWE and WINOKUR, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Michael J. Winer of Winer Law Group, P.A., Tampa, for Appellant.

Linda McCoy, Fayetteville, GA, for Appellee Darien Smith.

8 Kimberly J. Fernandes of Kelley Kronenberg, Tallahassee, for Appellees The Home Depot U.S.A. and Liberty Mutual Insurance Company.