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Citizens Property Insurance Corp. v. Anderson

Florida Court of Appeals, Second District

February 14, 2018



         Appeal from the Circuit Court for Pasco County; Linda H. Babb, Judge.

          Scot E. Samis of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg, for Appellant.

          Mark A. Nation and Paul W. Pritchard of The Nation Law Firm, Longwood, for Appellee.

          MORRIS, Judge.

         Citizens Property Insurance Corporation appeals a final judgment awarding attorneys' fees, including a 1.7 contingent fee multiplier, [1] to Meghan Anderson. The fee award was based on the verdict rendered in Anderson's favor in her breach of contract action against Citizens for failure to pay for a sinkhole loss. After prevailing at trial, Anderson sought attorneys' fees and costs pursuant to sections 57.041, 92.231, and 627.428, Florida Statutes (2014). Following an evidentiary hearing that was conducted without a court reporter, the trial court awarded a total of $493, 246.50 in attorneys' fees which included the 1.7 contingent fee multiplier. Citizens argues that the trial court's failure to make a finding as to whether the market required a contingent fee multiplier pursuant to Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), is an error apparent on the face of the record and, therefore, that the transcript of the evidentiary hearing is not required. We agree and reverse the trial court's order.

         I. BACKGROUND

         Because this appeal involves an attorneys' fees award-rather than the underlying civil judgment-a complete recitation of the facts underlying the breach of contract action is unnecessary. Rather, it is sufficient to note that there was a dispute between Anderson and Citizens as to whether cracking damage in her home was caused by a sinkhole. Ultimately, Citizens denied Anderson's sinkhole claim, and Anderson filed suit. The jury rendered a verdict in Anderson's favor and awarded her $84, 000. Shortly thereafter, she filed her motion for attorneys' fees.

         It is undisputed that Anderson did not testify at the fee hearing. The court did take testimony from counsel for both parties and from the parties' experts, but the hearing was not transcribed.

         In the judgment awarding attorneys' fees, the trial court awarded $290, 145 in base attorneys' fees which was the total amount of fees for four attorneys who represented Anderson with each being awarded the equivalent of $500-$600 per hour. On the issue of the 1.7 contingent fee multiplier, the trial court found the use of the multiplier was appropriate under the guidelines set forth in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and Quanstrom. As a further basis for applying the multiplier, the court explained that "at the outset of the handling of the case, [Anderson's] chances of success were 50/50" and that out of all the sinkholes cases tried by the trial court, "there have only been two cases won by the policyholder." The total attorneys' fees award after application of the 1.7 contingent fee multiplier, but exclusive of costs and interest, came to $493, 246.50.

         After filing its appeal from the attorneys' fee judgment, Citizens moved to relinquish jurisdiction to the trial court so that Citizens could, pursuant to Florida Rule of Appellate Procedure 9.200(b)(4), seek preparation of a statement of the evidence in lieu of a transcript of the fee hearing. However, the parties could not agree on the substance of such a statement, and the trial court judge indicated she had an insufficient memory of the witnesses' testimony. As a result, this appeal comes to us without a transcript, and the trial court's order on the proposed statement of the evidence lists only the names of the witnesses who testified and the documentary evidence that was presented.

         II. ANALYSIS

         We review an order applying a multiplier to a fee award for abuse of discretion. USAA Cas. Ins. Co. v. Prime Care Chiropractic Ctrs., P.A., 93 So.3d 345, 347 (Fla. 2d DCA 2012). We must reverse the application of a multiplier if it is not supported by competent, substantial evidence. Id. Reversal is also required if a trial court fails to include specific findings supporting the application of a multiplier. Speer v. Mason, 769 So.2d 1102, 1105 (Fla. 4th DCA 2000); Dep't of Agric. & Consumer Servs. v. Schick, 553 So.2d 361, 362 (Fla. 1st DCA 1989) (explaining that judgments are deficient if they fail to include specific findings to support an enhancement factor in attorneys' fees awards).

         Citizens contends that there is insufficient evidence in the record regarding whether the market required the application of a contingent fee multiplier, and it argues that the final judgment is erroneous on its face because it fails to include a finding as to that factor. While the lack of a transcript or stipulated statement of the facts might require an affirmance in other cases, that rule is not applicable where a trial court order is fundamentally erroneous on its face for failure to make required findings. See Wolfe v. Nazaire, 758 So.2d 730, 733 (Fla. 4th DCA 2000) (reversing and remanding attorneys' fees award despite lack of a transcript where court failed to explain its reasons for using a multiplier); Guardianship of Halpert v. Martin S. Rosenbloom, P.A., 698 So.2d 938, 939-40 (Fla. 4th DCA 1997) (reversing and remanding attorneys' fees award despite lack of transcript where order failed to contain findings as to the hourly rate or the number of hours reasonably expended); Giltex Corp. v. Diehl, 583 So.2d 734, 735 (Fla. 1st DCA 1991) (reversing and remanding attorneys' fees award despite lack of a transcript where order failed to contain findings required by Rowe).

         The dissent would have us affirm based on Citizens' failure to provide a transcript or a stipulated statement of the facts, citing Esaw v. Esaw, 965 So.2d 1261, 1264 (Fla. 2d DCA 2007), for the proposition that "[t]he most salient impediment to meaningful review of the trial court's decision is not the absence of findings, but the absence of a transcript." However, Esaw did not involve the issue of an award of attorneys' fees, and notably, we acknowledged

that there are circumstances in which a claim of inadequate findings can lead to reversal even in the absence of a transcript or appropriate substitute. In particular, an award of attorney's fees without adequate findings justifying the amount of the award is reversible even where the ...

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