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In reviewing a trial court’s award of reasonable attorney’s fees for the prevailing party, appellate courts must look to the record to determine if “there is competent substantial evidence which supports the trial court’s order under the totality of the circumstances.” Raza v. Deutsche Bank Nat’l Tr. Co., 100 So. 3d 121, 126 (Fla. 2d DCA 2012).  While the amount of fees awarded is subject to a trial court’s discretion, appellate courts still may assess whether trial courts abused that discretion in determining the amount of fees owed to the prevailing party.  In some instances, this leads to trial courts being reversed on appeal for awarding significantly less than the amount requested by the party seeking attorney’s fees.

For example, in Biscayne Roofing Co. v. Palmetto Fairway Condo. Ass’n, the Third District Court of Appeal found error in the amount of attorney’s fees awarded by the trial court. In the court below, unrebutted expert testimony called for a fee award between $19,000 and $25,000, but the trial court awarded only $10,000. The appellate court found that the $10,000 award was not supported by the record and constituted an abuse of the trial court’s discretion. The appellate court remanded the fee issue to the trial court for a redetermination of the amount of attorney’s fees owed consistent with its order. 418 So. 2d 1109, 1110-11 (Fla. 3d DCA 1982).

Further, in Autorico, Inc. v. Gov’t Empls. Ins. Co., the Third District Court of Appeal held that the trial court erroneously awarded attorney’s fees based on a contingency fee agreement and not the amount it found reasonable. In the court below, the plaintiff insurer was awarded a judgment against defendant automobile seller for selling a defective automobile to the insured that caught fire after being driven 10 miles. Plaintiff filed a motion to recover its attorney’s fees on the basis that Defendant had asserted frivolous defenses, thereby entitling Plaintiff to its reasonable attorney’s fees. The trial court granted the motion and found that the reasonable attorney’s fees incurred were $2,150.00, but awarded only $833.33 in accordance with the contingency fee contract between Plaintiff and its attorney. The appellate court reversed and held that it was error for the trial court to base the fee award on the contingency fee contract rather than the reasonable amount of fees it had found to be incurred, as the court was not bound by the contingency fee contract in awarding a reasonable fee. The appellate court remanded with directions to enter an attorney’s fee award of $2,150.00. 398 So. 2d 485, 486-88 (Fla. 3d DCA 1981).

In Florida Patient’s Compensation Fund v. Rowe, the seminal 1985 case in Florida on prevailing party attorney’s fees, the Florida Supreme Court affirmed that when computing a reasonable attorney’s fee for the prevailing party in a case involving a contingency fee agreement, a significant factor to consider in the calculation is the contingency risk factor, or “multiplier.”  In Rowe, the Court discussed the need for lawyers to offer services on a contingency basis in order to provide litigants with increased access to the court system and the service of attorneys, as well as the burden this places on attorneys who may only get paid if their client ultimately prevails in the litigation.  The Rowe Court held that, upon calculating a preliminary “lodestar” award of attorney’s fees for the prevailing party (i.e., the reasonable hours expended on the litigation multiplied by a reasonable hourly rate for the services provided), Florida courts are authorized to enhance that lodestar by a multiplier of 1.5 to 3, depending on the prevailing party’s likelihood of success at the outset of the case.  For example, if a court were to calculate a lodestar of $100,000.00 in reasonable attorney’s fees in a case involving a contingency fee agreement, Rowe would authorize the court to multiply that amount by 1.5 to 3 (resulting in a potential fee award of anywhere between $150,000.00 and $300,000.00).  Specifically, the Rowe Court held that when success is more likely than not at the outset of litigation, the multiplier should be 1.5; when the likelihood of success is approximately even at the outset, the multiplier should be 2; and when success was unlikely at the time the case was initiated, the multiplier should be between 2.5 to 3.

A few years later, after the United States Supreme Court effectively eliminated the use of the contingency multiplier in Federal matters, the Florida Supreme Court reexamined its decision in Rowe. In Standard Guaranty Ins. Co., v. Quanstrom, the Florida Supreme Court modified the computation of the contingency fee multiplier. The Court placed attorney’s fees cases into three broad categories: (1) public policy enforcement cases, (2) tort and contract claims, and (3) family law, eminent domain, and trusts and estates matters. In the public policy category, the Florida Supreme Court agreed with the United States Supreme Court that the twelve factors set forth in Johnson v. Georgia Highway Express, should be utilized to determine a reasonable attorney’s fee. Second, in the tort and contract claims category, the court reaffirmed the factors set forth in Rowe and considered additional factors in determining whether to apply a multiplier: “(1) whether the relevant market requires a contingency fee multiplier to obtain competence counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.” The Court reasoned that a multiplier is still a useful tool which can help assist trial courts in determining reasonable fees when risk of nonpayment is established, though modified the multiplier factor established in Rowe to allow a multiplier of the calculated lodestar from 1.0 to 2.5 (replacing the previous standard of 1.5 to 3.0).  However, in the family law, eminent domain, and trusts and estates category, the Court held that multipliers are generally not justified.

In 2017, the Florida Supreme Court again addressed the utilization of multipliers in Joyce v. Federated Nat’l Ins. Co. The Court made clear that the use of contingency fee multipliers is not limited to “rare” or “exceptional” circumstances, a position that had been taken by some lower state courts.  However, in 2023, the Florida Statutes were amended at F.S. 57.104 to state that “there is a strong presumption that a lodestar fee is sufficient and reasonable. This presumption may be overcome only in a rare and exceptional circumstances with evidence that competent counsel could not otherwise be retained.”  Thus, while a multiplier is still available under Florida law, the circumstances in which a court may apply a multiplier are now substantially constrained.

Broadly speaking, there are two approaches to the payment of the winning, or “prevailing,” party’s attorney’s fees at the conclusion of litigation.  In some countries outside the United States, courts follow the “English Rule” for determining who is responsible for paying the prevailing party’s attorney’s fees, where the losing party typically pays the prevailing party’s attorney’s fees as a matter of course. In contrast, the “American Rule” for attorney’s fees provides that each party is generally responsible for paying their own attorney’s fees, regardless of the outcome of the case.  However, Florida recognizes exceptions to the American Rule, such that the losing party in a lawsuit may be required to pay the prevailing party’s attorney’s fees – namely, when a statute or contract expressly entitles the prevailing party to recover its attorney’s fees from the losing party in the event of litigation.  In such instances, Florida law requires that the fee to be recovered from the losing party be reasonable, and a body of case law has been developed governing the calculation of a reasonable attorney’s fee for the prevailing party.

In Florida, the basic model for determining reasonable attorney’s fees primarily follows the federal “lodestar” approach. This method involves accounting for several criteria and calculating the total number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate to produce the “lodestar” amount. The court may then adjust this lodestar amount based on factors such as the contingency risk and the results obtained.

In determining reasonable attorney fees, Florida courts consider the following criteria:

By now you have probably heard about former NBA star, Lamar Odom’s, health scare.  Odom was found unconscious in a Nevada brothel on Tuesday, October 15, 2015.  Fortunately, Odom’s condition has improved, and he appears to be on the road to recovery.  What you might have not heard about in the news, however, are the estate implications and complications that came as a result of lax estate planning on behalf of Odom.

Although Odom was a highly-skilled NBA player, his increased fame can be attributed largely to his starring role on E!’s hit TV-series “Khloe & Lamar.”  Because of the popularity of the series, Khloe Kardashian and Odom’s “divorce” got a lot of attention and publicity from the media, but apparently not from the California courts.  As it turns out, the couple signed and filed divorce papers in July of 2015, but due to a severe backlog in the California courts, their divorce has not been finalized.  As a result of the delay, Lamar Odom and Khloe Kardashian are still legally married.  These circumstances created an interesting situation when Odom was found unconscious at the brothel because, as his legal spouse, Khloe Kardashian is responsible for making medical decisions on Odom’s behalf.

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