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Westaway v. Wells Fargo Bank, N.A.

Florida Court of Appeals, Second District

September 1, 2017

DEBRA WESTAWAY, Appellant,
v.
WELLS FARGO BANK, N.A., as trustee for Carrington Mortgage Loan Trust, Series 2007-RFC1, Asset-Backed Pass Through Certificates, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Pinellas County; Kathleen T. Hessinger, Judge.

          Robert E. Biasotti, of Biasotti Law, St. Petersburg, for Appellant.

          Nancy M. Wallace, of Akerman LLP, Tallahassee; William P. Heller, of Akerman LLP, Fort Lauderdale, and Eric M. Levine, of Akerman LLP, West Palm Beach, for Appellee.

          ROTHSTEIN-YOUAKIM, Judge.

         Debra Westaway appeals the trial court's Final Judgment of Attorneys' Fees and Costs in a foreclosure action brought against her by Wells Fargo Bank, N.A. Westaway argues that the trial court abused its discretion in (1) sua sponte reducing her attorneys' reasonable hourly rate, (2) reducing the paralegal time billed by her attorneys, and (3) refusing to award a contingency multiplier. After the benefit of oral argument, we agree that the court abused its discretion in reducing her attorneys' reasonable hourly rate, and we reverse and remand for the trial court to recalculate its award of attorneys' fees based on the rate that Westaway's attorneys originally requested. In all other respects, we affirm.

         Prior Proceedings

         In 2009, Wells Fargo, acting as trustee of a real estate investment trust, filed a foreclosure complaint against Westaway. After five years of litigation, Westaway obtained an order of involuntary dismissal against Wells Fargo's claim. This court affirmed the involuntary dismissal on direct appeal. Wells Fargo Bank, N.A. v. Westaway, 182 So.3d 653 (Fla. 2d DCA 2015) (table decision).

         After prevailing in the underlying foreclosure case, Westaway moved for attorneys' fees, costs, and a contingency risk multiplier. The trial court concluded that Westaway was entitled to fees, but, before the court could determine a reasonable amount, Wells Fargo's counsel moved to withdraw. Accordingly, the trial court gave Wells Fargo thirty days to retain new counsel.

         When the time came for the hearing on the amount of fees, however, Wells Fargo was neither present nor represented. Thus, there was no opposing party to dispute any of the evidence that Westaway's counsel presented. In addition, the judge presiding over the hearing was not the judge who had determined Westaway's entitlement to fees. Westaway's attorneys requested a lodestar award based on an hourly rate of $325. In support of that request, an experienced foreclosure defense attorney, appearing as an expert witness, testified that such a rate was reasonable.

         The trial court asked the expert witness how Westaway's attorneys could charge a rate of $325 an hour given that they had only had two years of experience when they had taken the case. The expert witness answered, "I think that is what attorneys are charging, your Honor." Incredulous, the court mused, "$325 for a two-year lawyer[?]" The expert witness responded that he knew the "success rate" of Westaway's counsel and that they were "certainly worth $325 an hour."

         At the conclusion of Westaway's evidence, the trial court made a lengthy oral ruling, chastising Westaway's attorneys for what the court perceived as (1) overbilling secretarial work by labeling it as paralegal work and (2) requesting a contingency multiplier in a case where a multiplier was unwarranted. With respect to the hourly rate, the court again expressed personal disbelief that attorneys with two years of experience could reasonably command $325 an hour and noted that, as the fact finder, it was not required to accept the expert's testimony "as gospel." On June 9, 2016, the trial court rendered its Final Judgment of Attorneys' Fees and Costs. Paragraph two of the judgment provides, in pertinent part:

2. Pursuant to the factors to be considered in determining the reasonableness of the attorneys' fees outlined in Rule 4-1.5, Florida Bar Rules of Professional Conduct, and under Florida Patient's Compensation Fund v. Rowe, 472 So.2d. 1145 (Fla. 1985), the rate of $200 per hour from August 4, 2010, through December 21, 2012, and the rate of $250.00 an hour from January 2013 through the conclusion of this matter is a reasonable hourly rate . . . given the ...

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