10 Fla. L. Weekly Supp. 959a

Insurance — Personal injury protection — Attorney’s fees — Appeals — Consolidated appeals by insurer and insured — Jurisdiction — Trial court lacked jurisdiction to enter amended final judgments after notice of appeal of original final judgments was timely filed where there was no request to appellate court to transfer or relinquish jurisdiction to trial court to amend original final judgments, and there was no motion for rehearing or motion to amend final judgments pending at time appeal was filed — Appellate court will consider only original final judgments — Insurer’s appeal — Contingency risk multiplier — Where insurer challenged insured’s entitlement to multiplier in its initial brief and then acknowledged in reply brief prior admission that insured was entitled to multiplier but for first time challenged amount of multipliers awarded, appellate court declines to consider argument disputing range of multipliers awarded — Appellate fees — Prevailing insured is entitled to award of attorney’s fees under sections 627.428 and 627.736(8) — Justiciable issues — Despite fact that insurer’s argument that trial court’s conclusions that insured’s attorneys were entitled to multipliers is not supported by record is itself not supported by record, appeal was not frivolous when filed in absence of authority establishing exact threshold of evidence required to support award of multiplier — However, appeal became frivolous after insurer conceded prior admission that insured’s attorneys were entitled to multipliers — Fees awarded from date of reply brief — Motion for award of attorney’s fees based on bad faith of insurer in withholding payment of undisputed lodestar fees, interest, and costs is denied where insured fails to identify what services were provided and types of fees he incurred as result of alleged misconduct — Insured’s appeal and cross-appeal — Costs — No abuse of discretion in failure to award start up costs in one of five suits filed by insured when additional medical expenses and bills became due subsequent to filing of initial suit where insured fails to identify any record evidence reflecting that start up costs were incurred and reasonably necessary, and insurer disputed start up costs in all suits subsequent to initial suit — Discovery — Failure to comply — No error in denial of motion to tax supplemental fees and costs incurred due to insurer’s failure to make admissions as denial pertains to last three cases filed, in which there is no evidence of requests for admissions — No abuse of discretion in denial of motion to tax supplemental fees and costs as it pertains to first three cases filed where, although insurer denied market required multiplier and that attorneys were unable to mitigate risk of nonpayment, it admitted insured’s attorneys were entitled to multiplier and that time spent by attorneys was reasonable and necessary — Insured is not entitled to supplemental fees and costs for insurer’s failure to admit that hourly rates were reasonable where hourly rates were not hotly contested and central issues of case, and there is no evidence that insurer’s denial of reasonableness of rates was made in bad faith or that fact was known with certainty at time admissions were requested — Orders denying supplemental fees and costs are affirmed despite trial court’s failure to make findings of fact in support of denials and absence of transcript of hearing showing oral findings where record supports trial court’s denials — Insured’s request for appellate fees pertaining to his appeal is denied where, because insured’s request for supplemental fees and costs was made as a discovery sanction, it is not claim under insurance policy within scope of section 627.428

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. JEFFERY AYERS, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-01-63. L.C. Case Nos. CCO-00-5441, CCO-00-11426, CCO-00-12484, CCO-00-14622, CCO-01-812, CCO-01-1246. Consolidated Appeal. October 14, 2003. Appeal from the County Court for Orange County, Thomas R. Kirkland, Judge. JEFFREY AYERS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Case No. CVA1-02-27. L.C. Case Nos. CCO-00-5441, CCO-00-11426, CCO-00-12484, CCO-00-14622, CCO-01-812, CCO-01-1246. Appeal from the County Court for Orange County, C. Jeffery Arnold, Judge. Counsel: Julie Walbroel-Pardy and Michael V. Hammond, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., for Appellant/Appellee State Farm. V. Rand Saltsgaver, Law Offices of V. Rand Saltsgaver, Orlando, for Appellee/Appellant Ayers.

(Before LAWSON, KOMANSKI, and THORPE, JJ.)FINAL ORDER AND OPINION REGARDINGCONSOLIDATED APPEAL AND MOTIONSFOR APPELLATE ATTORNEYS’ FEES AND COSTS

(PER CURIAM.) This is a consolidated appeal under CVA1-01-63 by Defendant/Appellant, State Farm Mutual Automobile Insurance Company (“State Farm”), of the trial court’s eight final judgments granting motions for attorneys’ fees and costs, filed by Plaintiff/Appellee, Jeffery Ayers (“Ayers”), as well as the cross appeal filed by Ayers as to one of those final judgments denying his costs.

Ayers filed a timely Notice of Appeal under CVA1-01-27 of the trial court’s six orders denying his Motion to Tax Supplemental Attorney’s Fees and Costs. Subsequently, this Court consolidated CVA1-01-27 with CVA1-01-63. Thus, State Farm’s appeal, which includes Ayers’ cross appeal, and Ayers’ direct appeal will be addressed herein under CVA1-01-63. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A).

GENERAL FACTS

Ayers was involved in an automobile accident while he was insured under a policy issued by State Farm, which provided him Personal Injury Protection (“PIP”) coverage. As a result of this accident, he sustained significant injuries for which he received medical treatment. Ayers filed a lawsuit against State Farm in the lower court case number CCO-00-5441, alleging State Farm failed to timely pay his PIP benefits within thirty days for the medical treatment he received. Subsequently, he filed five additional lawsuits against State Farm for benefits arising from the accident in case numbers CCO-00-11426, CCO-00-12484, CCO-00-14622, CCO-01-812, and CCO-01-1246. Ayers retained the legal services of Kevin Weiss, Esquire (“Weiss”) and V. Rand Saltsgaver, Esquire (“Saltsgaver”), in these lawsuits under contingency fee contracts. All of the lawsuits were ultimately settled; however, the issue of attorneys’ fees and costs remained outstanding.

State Farm moved to consolidate the five subsequent lawsuits with the first lawsuit, arguing that they should have been filed as one case. State Farm maintained that when additional medical expenses and bills came due subsequent to the filing of the initial lawsuit, Ayers inappropriately filed a separate lawsuit each time as opposed to simply amending the first lawsuit to include the additional expenses. Thus, State Farm argued that the start-up fees generated in the subsequent lawsuits were unnecessary. In March 2001, the trial court consolidated all of the lawsuits into the first lawsuit filed under case CCO-00-5441. It held a consolidated hearing on Ayer’s request for attorneys’ fees and costs incurred in all of the lower court cases, which was held on August 22, 2001, and concluded on September 26, 2001.

At the hearing, State Farm stipulated to a $300.00 hourly rate for Saltsgaver, and a $225.00 hourly rate for Weiss. State Farm also stipulated to certain fees and costs incurred in case number CCO-00-5441. State Farm contested the costs for the five subsequent lawsuits and maintained its position that all of the lawsuits should have been brought as one. It argued Ayers’ attorneys were entitled to attorneys’ fees for only forty hours of work, and multipliers were not warranted.

Notwithstanding the consolidation, the trial court did not agree that all of the lawsuits should have been filed as one, and entered eight final judgments granting attorneys’ fees and costs to Saltsgaver and Weiss in the six lawsuits. The trial court found that Saltsgaver reasonably expended a total of 28 hours and Weiss reasonably expended a total of 110.30 hours in all of the lower court cases. The final judgments also included multipliers ranging from 1.5 to 2.0.

First, this Court will consider State Farm’s appeal, which challenges only the multipliers that were applied to Ayers’ awards for attorneys’ fees in the final judgments entered by the trial court. We will also address several motions filed by Ayers requesting appellate attorneys’ fees related to State Farm’s appeal. Next, this Court will consider Ayers’ cross appeal of the trial court’s denial of his costs as to one of the final judgments awarding him attorneys’ fees.

Finally, we will consider Ayers’ appeal, which challenges the trial court’s denial of his request for supplemental attorneys’ fees as a sanction for litigating his entitlement to attorneys’ fees below. Ayers’ motion for appellate attorneys’ fees pertaining to this appeal shall also be considered.

I. STATE FARM’S APPEAL

A. Preliminary Jurisdiction Issue

On November 5, 2001, the trial court entered three of the final judgments awarding attorney’s fees and costs to Saltsgaver in the following lower court cases: CCO-00-5441, CCO-01-812, and CCO-01-1246. That same day, it entered five additional final judgments awarding attorney’s fees and costs to Weiss in the following lower court cases: CCO-00-5441, CCO-00-11426, CCO-00-12484, CCO-00-14622, and CCO-01-812. The record shows that no motion for rehearing or motion to amend was filed. On November 30, 2001, State Farm timely filed its Notice of Appeal pertaining to all eight final judgments.

On December 18, 2001, the trial court entered an Amended Final Judgment Awarding Attorney’s Fees and Costs to Saltsgaver in case number CCO-01-1246. On January 3, 2002, it entered an Amended Final Judgment Awarding Attorney’s Fees and Costs to Saltsgaver in case numbers CCO-00-5441 and CCO-01-812. That same day, it entered an Amended Final Judgment Awarding Attorney’s Fees and Costs in all of the remaining cases pertaining to Weiss, which included CCO-00-5441, CCO-00-11426, CCO-00-12484, CCO-00-14622, and CCO-01-812. Each of the final judgments was amended to include only findings of fact upon which the trial court based its original awards for the fee multipliers; however, the amounts remained unchanged.

On February 19, 2002, State Farm filed an amended notice of appeal of all eight amended final judgments entered by the trial court. Ayers moved to dismiss, arguing it was untimely because it was filed beyond thirty days of the rendition of the amended final judgments, which were entered on December 18, 2001, and January 3, 2002. On July 18, 2002, this Court entered an Order denying Ayers’ motion to dismiss the amended notice of appeal because the amended final judgments did not alter the original final judgments in a material manner; therefore, the time for filing the notice of appeal began to run from the date the original final judgments were entered.

When State Farm timely filed its original Notice of Appeal on November 30, 2001, it effectively transferred jurisdiction to this Court, and there was no request made to this Court to relinquish jurisdiction back to the trial court to amend its original final judgments. See Owen v. Wilson, 399 So. 2d 498 (Fla. 5th DCA 1981) (trial court was without jurisdiction to enter an amended final order after the order was appealed). Moreover, the record below does not reflect that there was a motion for rehearing or motion to amend filed and pending when State Farm filed its original Notice of Appeal, which would have rendered its notice premature until such post-trial motions were disposed of by written order. See Howell v. Jackson, 810 So. 2d 1081 (Fla. 4th DCA 2002) (notice of appeal was premature because final judgment was not deemed rendered until post-trial motions were disposed of).

Although Ayers moved to dismiss State Farm’s amended notice of appeal because he claimed it was untimely, he did not challenge the amended final judgments on the basis that the trial court lacked jurisdiction to enter them; therefore, that issue was not considered by this Court.¹ Subject matter jurisdiction, however, may not be waived or conferred upon a court by the agreement of the parties. MCR Funding v. CMG Funding Corp., 771 So. 2d 32, 35 (Fla. 4th DCA 2000). Accordingly, the trial court lacked jurisdiction to enter the amended final judgments and this Court shall consider only the original final judgments herein.

B. Standard of Review

The parties agree that the standard of review of decisions to award attorneys’ fees and fee multipliers is abuse of discretion. See Baker v. Falcon Power, Inc., 788 So. 2d 1104 (Fla. 5th DCA 2001); Elliot v. Pallotti, 654 So. 2d 1300 (Fla. 5th DCA 1995).

C. Relevant Law

Florida has adopted the federal lodestar approach for computing reasonable attorneys’ fees. Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). First, the trial court must determine the number of reasonable hours expended in the case, multiplied by the prevailing hourly rate attorneys charge in the community. Id. at 1150.

The lodestar amount may be enhanced by a contingency multiplier if the trial court determines the case meets the following criteria: “(1) whether the relevant market requires a contingency fee multiplier to obtain competent 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. . . .” Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990).

The Rowe factors to be considered in determining whether a multiplier is necessary include:

(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(8) Whether the fee is fixed or contingent.

Rowe, 472 So. 2d at 1150. The contingency risk multiplier range is from 1.0 to 2.5 pursuant to the following guidelines:

[I]f the trial court determines that success was more likely than not at the outset, it may apply a multiplier of 1 to 1.5; if the trial court determines that the likelihood of success was approximately even at the outset, the trial judge may apply a multiplier of 1.5 to 2.0; and if the trial court determines that success was unlikely at the outset of the case, it may apply a multiplier of 2.0 to 2.5.

Quanstrom, 555 So. 2d at 834.

D. The Instant Case

The lodestar amount determined by the trial court is not at issue because State Farm does not dispute the trial court’s findings as to the number of hours reasonably expended or the hourly rates set forth in the final judgments. Thus, it does not challenge the trial court’s awards of attorneys’ fees and costs in the five subsequent lawsuits that were filed, which was the main position taken by State Farm below.

In its initial brief, State Farm contends the trial court abused its discretion by awarding a contingency risk multiplier in all of the cases because there was no testimony presented regarding the factors to be considered in awarding a multiplier, or whether the local market required the multiplier to obtain competent counsel. It maintains Ayers’ attorneys were able to mitigate the risk of nonpayment due to the voluminous number of PIP cases they file, and that there was no evidence that a “premium” was required to obtain his attorneys.

In short, State Farm argues in its initial brief that Ayers was not entitled to a contingency multiplier in any of the lawsuits below because there was no evidence presented to support the conclusion that the market required a multiplier, that the attorneys were unable to mitigate the risk of nonpayment, or that the Rowe factors were applicable.

In Ayers’ amended answer brief, however, he points out that in February 2001, State Farm admitted his attorneys were entitled to a multiplier in its response to his request for admissions; therefore, State Farm waived appellate review of this issue. He further urges that there was overwhelming evidence supporting the multipliers that were awarded.

In its reply brief, State Farm acknowledges its prior admission that Ayers’ attorneys were entitled to a multiplier, and it did not limit this acknowledgment to any particular lower court case in which the admission was made. Thus, State Farm now concedes that Ayers’ attorneys were entitled to a multiplier in the cases below.

State Farm asserts its admission that Ayers’ attorneys were entitled to a multiplier is not an admission that they were entitled to the 1.5 to 2.0 range of multipliers that were awarded by the trial court. Therefore, State Farm now takes the position that even though it admitted Ayers’ attorneys were entitled to multipliers, the amount of the multipliers awarded should have been in the lower range. State Farm states “[i]f the multipliers had ranged from 1.0 through 1.5, for example 1.25, State Farm may not have initiated this appeal.” State Farm, however, does not provide in its initial brief or its reply brief, a factual or legal basis for its position that the trial court erred in awarding multipliers ranging from 1.5 through 2.0 instead of 1.0 through 1.5.

State Farm has changed its position in this appeal from challenging Ayers’ attorneys’ entitlement to the multipliers, to challenging the amount ofthe multipliers that were awarded. The amount of a multiplier, however, is determined by different criteria than what a court uses to determine entitlement to a multiplier. Once a court determines that the lodestar amount of attorneys’ fees is entitled to be enhanced by a multiplier based upon the criteria set forth in Quanstrom, acourt then determines the amount of such multiplier by assessing an appropriate range from 1.0 to 2.5 based on the likelihood of success at the outset of a case. See Quanstrom, 555 So. 2d at 834.

When new issues are raised in a reply brief that were not addressed in an initial brief, such claims should not be considered by an appellate court. See Medrano v. State, 795 So. 2d 1009 (Fla. 4th DCA 2001). See also Snyder v. Vollkswagon of America, Inc., 574 So. 2d 1161 (Fla. 4th DCA 1991) (issue raised for first time on appeal in reply brief would not be considered by court even though it was properly preserved for appeal); Fernandez v. Fernandez, 727 So. 2d 1108, 1109 (Fla. 4th DCA 1999) (court would not consider appellant’s additional arguments because such were raised for the first time in his reply brief).

In the instant case, State Farm does not present a legal or factual argument in its initial brief regarding its new allegation that the trial court erred in awarding the amount of multipliers based upon the trial court’s findings regarding the likelihood of success at the outset for each of the lower court cases. Likewise, no factual basis or legal argument was provided in its reply brief on this issue. Accordingly, this Court declines to consider State Farm’s argument disputing the range of multipliers awarded.

State Farm does not dispute the lodestar amount awarded on appeal; it concedes in its reply brief that Ayers’ attorneys were entitled to a multiplier; and, it fails to provide a factual or legal basis in either brief to support its late argument that the trial court abused its discretion in awarding multipliers ranging from 1.5 to 2.0 based upon its findings concerning the likelihood of success at the outset. Accordingly, the trial court’s final judgments granting Ayers’ motions for attorneys’ fees and costs in all of the lower court cases shall be affirmed.

E. Ayers’ Motions Requesting Appellate Attorneys’ Fees

Ayers filed several motions requesting appellate attorneys’ fees in this appeal. These include a “Motion for Attorney’s Fees Pursuant to FS 57.105 and/or Rule 9.410,” served on December 19, 2001; a “Motion to Tax Appellate Attorney’s Fees,” served on February 5, 2002; an “Amended Motion to Tax Appellate Attorney’s Fees,” served on April 29, 2002; and a “2nd Motion for Attorney’s Fees Pursuant to FS 57.105 and/or Rule 9.410,” served on July 11, 2002. In all, he seeks appellate attorneys’ fees pursuant to Sections 627.736(8), 627.428, and 57.105, Florida Statutes, as well as Florida Rules of Appellate Procedure 9.400 and 9.410.

(1) Sections 627.736(8) and 627.428(1), Florida Statutes

Florida follows the “ ‘American Rule’ that attorney’s fees may be awarded by a court only when authorized by statute or by agreement of the parties.” State Farm Fire & Casualty. Co. v. Palma, 629 So.2d 830, 832 (Fla. 1993). Section 627.736(8), Florida Statutes (2001), provides that with respect to any dispute involving PIP benefits between the insured and the carrier, Section 627.428 shall apply, which provides upon rendition of a judgment against a carrier and in favor of an insured, the appellate court shall award a reasonable attorney’s fee to the insured’s attorney in the event of an appeal in which the insured prevails. § 627.428(1), Fla. Stat. (2001).

Pursuant to State Farm’s responses to Ayers’ request for post-judgment admissions served in December 2001, it admits Ayers is entitled to attorneys’ fees under Sections 627.428 and 627.736(8), Florida Statutes, should he be the prevailing party in this appeal. Because State Farm agrees Ayers is entitled to appellate attorneys’ fees as a prevailing party, such fees are warranted. “Florida Rule of Appellate Procedure 9.400 contemplates an allowance of attorney’s fees only if otherwise authorized by substantive law.” Nationwide Mutual Ins. Co. v. Nu-Best Diagnostic Labs, Inc., 810 So. 2d 514, 515 (Fla. 5th DCA 2002) . Accordingly, Ayers’ Amended Motion to Tax Appellate Attorney’s Fees shall be granted.

(2) Section 57.105, Florida Statutes

Ayers filed two additional motions, claiming he is entitled to an award for appellate attorneys’ fees under Section 57.105 for having to defend this appeal. Finding merit in Ayers’ request for appellate fees on this basis, and because Section 57.105 gives this Court the authority to equally assess such fees between State Farm and its counsel, his motions shall be considered herein.

Ayers contends there is no evidence in the record or existing law that supports State Farm’s position in this appeal. He argues that the purpose of State Farm’s appeal is to delay payment of the fee and cost judgments, similar to State Farm’s actions in two unrelated appeals involving Saltsgaver. Ayers maintains State Farm’s appeal is contradicted by overwhelming evidence and was taken primarily to delay or prolong the resolution of this litigation; therefore, he claims he is entitled to an award for attorneys’ fees under Section 57.105 to compensate him for the expense of having to defend a spurious appeal.

Section 57.105 may be used to support a claim for attorneys’ fees on appeal. Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414, 417 (Fla. 1st DCA 2002). In determining whether attorneys’ fees are warranted under Section 57.105, a court must determine whether the suit was frivolous when initially filed or if it became frivolous thereafter. Weatherby Assoc., Inc. v. Ballack, 783 So. 2d 1138, 1142 (Fla. 4th DCA 2001). “[A] ‘frivolous’ appeal is one which raises arguments a reasonable lawyer would either know are not well grounded in fact, or would know are not warranted . . . by existing law . . . .” Visoly v. Security Pacific Credit Corp., 768 So. 2d 482, 491 (Fla. 3d DCA 2000).

a. Whether State Farm’s appeal was frivolous when filed.

State Farm’s first argument on appeal is that the trial court abused its discretion in awarding the multipliers because there was no record evidence that Ayers would have had substantial difficulty retaining competent counsel without a multiplier. The record shows that Ayers’ expert witness testified there were no lawyers in the local market who were taking such cases without the possibility of obtaining a multiplier. Although State Farm’s expert did not agree, he was unable to testify that the lawyers in the local market would take the cases without a multiplier. Moreover, Saltsgaver testified that multipliers were necessary in this case and he would not take the case without a multiplier. This Court finds no evidence in the record that State Farm presented contrary evidence.

State Farm’s second argument on appeal is that the trial court abused its discretion in awarding the multipliers because Ayers’ attorneys were able to mitigate the risk of nonpayment by the sheer volume of PIP cases filed. In State Farm Mutual Automobile Ins. Co. v. Brock, 9 Fla. L. Weekly Supp. 212a (Fla. 9th Cir. Ct. Oct. 24, 2001), a different appellate panel of this Court rejected the same argument from State Farm because it was not elaborated upon and it lacked substance from both sides. In the instant case, the record shows Saltsgaver testified there was no way to mitigate the risk of nonpayment because Ayers was involved in a very serious accident and was in no position to hire an attorney paying an hourly rate. State Farm points to no evidence in the record that supports a contrary conclusion.

Finally, State Farm’s third argument on appeal is that the trial court abused its discretion by awarding multipliers because such an award is not automatic and must be clearly established in the record. State Farm relies on Strahan v. Gauldin, 756 So. 2d 158 (Fla. 5th DCA 2000), abrogated by Allstate Ins. Co. v. Sarkis, 809 So. 2d 6 (Fla. 5th DCA 2001). In Strahan, the court reversed a multiplier award of 2.0 because no evidence was presented that the plaintiff’s counsel could not have been retained but for a multiplier. Id. at 161. The court noted, however, that presenting testimony that shows the relevant market requires a multiplier could be a difficult task. Id. See also Sarkis, 809 So. 2d at 7 (where Fifth District Court of Appeal stated it has yet to see a case in which it has been shown to the satisfaction of the appellate panel that the attorney representing a plaintiff, or any other competent attorney in the community, would not have taken the case without a multiplier because such a showing is logically problematic). Unlike Strahan, there was evidence presented in the instant case that no attorney in the local market would have taken the case without a multiplier, as reflected by Ayers’ expert witness and Saltsgaver’s testimony.

Thus, in its third argument, State Farm restates its prior arguments and maintains there was no evidence that the multipliers were required to obtain competent counsel, and claims “[p]laintiffs’ attorneys are clamoring to obtain cases with a statutory attorney’s fee.” It fails, however, to support that statement with any facts in the record.

Based upon the foregoing, State Farm disputes the trial court’s conclusion that Ayers’ attorneys were entitled to multipliers because the evidence in the record did not support such conclusion. While the record does not support State Farm’s arguments, this Court is unable to find they raise no justiciable issues. Indeed, this Court has found no authority that establishes an exact threshold of evidence that is required to support an award for a multiplier under Rowe or Quanstrom. Accordingly, this Court will not conclude State Farm’s appeal was frivolous when filed.

b. Whether State Farm’s appeal became frivolous after filing.

This Court does find, however, that State Farm’s appeal became frivolous after it was filed. When Ayers pointed out in his amended answer brief that State Farm had previously admitted his attorneys were entitled to a multiplier in its response to his requests for admissions, State Farm acknowledged this admission in its reply brief, and it did not limit this acknowledgment to only those lower court cases in which it had filed such admissions. Moreover, State Farm does not claim this admission to be a scrivener’s error in its responses to the request for admission. Thus, it acknowledges that Ayers’ attorneys were entitled to a multiplier in all of the lower court cases, which is contrary to the arguments raised in its initial brief pertaining to the issue of entitlement under Rowe and Quanstrom.

Nevertheless, State Farm pressed this appeal by changing its position and disputed the amount of the multipliers that were awarded without presenting a factual basis or legal argument on that point to this Court. Indeed, State Farm’s statement in its reply brief that “[i]f the multipliers had ranged from 1.0 through 1.5, for example 1.25, State Farm may not have initiated this appeal,” further supports the conclusion that this appeal became frivolous at that point in time.

By making this statement, State Farm agrees it would have been proper for the trial court to award multipliers of 1.25 or below, which is contrary to its original position in this appeal that they were not entitled to multipliers at all. Accordingly, State Farm’s appeal became frivolous after it was filed because it conceded to the justiciable issues that originally formed the basis for the appeal. See Sykes v. St. Andrews School, 625 So. 2d 1317 (Fla. 4th DCA 1993) (imposition of attorneys’ fees under Section 57.105 was warranted for continuing to press appeal after sole justiciable issue was resolved); Ballack, 783 So. 2d at 1142-43 (where admissions in discovery resolved justiciable issues, suit became frivolous because no issues of law or fact remained).

It has been noted by the Fourth District Court of Appeal that “our legislature said in section 57.105 that courts ‘shall’ assess attorney’s fees for the bringing of frivolous litigation.” Sykes, 625 So. 2d at 1319. Based upon the foregoing, Ayers’ request for appellate attorneys’ fees is also warranted under Section 57.105 for those fees incurred from the date State Farm filed its reply brief. Because this is not a case where the attorneys for State Farm relied upon representations of their client in pursuing the appeal, State Farm will not be solely responsible for paying fees assessed as a sanction. See Visoly, 768 So. 2d at 492 (policy behind awarding fees under Section 57.105 is to discourage baseless claims and sham appeals by sanctioning those responsible for unnecessary litigation costs).

In the instant case, the facts and law should reflect to a reasonable attorney the lack of a justiciable issue after State Farm conceded its prior admission that Ayers’ attorneys were entitled to a multiplier. Thus, State Farm’s counsel shall also accept responsibility for the sanction. Accordingly, Ayers’ “Motion for Attorney’s Fees Pursuant to FS 57.105 and/or Rule 9.410” and “2nd Motion for Attorney’s Fees Pursuant to FS 57.105 and/or Rule 9.410” shall be granted as to those fees incurred from the date State Farrm filed its reply brief.

F. Ayers’ Motion for FS 57.105 Attorney’s Fees

On July 9, 2002, Ayers served this additional motion contending he is entitled to attorneys’ fees under Section 57.105. He maintains State Farm appealed only those portions of the trial court’s final judgments awarding multipliers, which challenged only those fees greater than 1.0. Because State Farm did not appeal the lodestar fees, interests, or costs, it confessed judgment for those sums; however, Ayers complains State Farm has withheld and continues to withhold payment of those sums without justification, thus it is in bad faith. Ayers further argues State Farm’s actions of withholding these sums is done for the purpose of unreasonably delaying payment to his attorneys, and to annoy and harass them. State Farm files no response.

Ayers fails to identify what services he provided and what type of fees he incurred as the result of State Farm’s alleged misconduct. Thus, he has not met his burden of showing he is entitled to attorneys’ fees on this basis and this motion shall be denied.

II. AYERS’ CROSS APPEAL

On November 28, 2001, State Farm served its Notice of Appeal of Final Orders, which included the final order entered on November 5, 2001, in lower court case number CCO-01-812, awarding attorney’s fees to Saltsgaver. On December 20, 2001, Ayers untimely served his Notice of Cross Appeal as to that final judgment challenging the trial court’s denial of costs. See Fla. R. App. P. 9.110(g).

In his cross appeal, Ayers contends the trial court denied his claim for filing fees and service of process fees in the amount of $145.00 in case number CCO-01-812. He argues he was entitled to those costs as a matter of law because he was the prevailing party and the Uniform Guidelines for the Taxation of Costs in Civil Cases required the trial court to award these costs. State Farm presents no position on this issue other than that the trial court properly exercised its discretion in denying the costs.

The taxing of costs is within the sound discretion of the trial court and may be taxed if a prevailing party can demonstrate that the costs were reasonably necessary. Willey v. M.K. Roark, Inc., 616 So. 2d 1140, 1143 (Fla. 4th DCA 1993).

Ayers fails to identify in the record any evidence regarding his claim for filing fees and service of process fees in the amount of $145.00 for case number CCO-01-812 that reflects these costs were incurred. Moreover, State Farm disputed the start-up costs claimed by Ayers in all of the lower court cases except those in CCO-00-5441, and Ayers fails to identify in the record any evidence pertaining to whether the costs at issue here were reasonably necessary. Thus, it is not possible for this Court to conclude that the trial court’s ruling was “outside the broad parameters of its discretion.” Noel v. Broward General Medical Center, 725 So. 2d 438, 439 (Fla. 4th DCA 1999) (citation omitted). See also Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (decision of trial court presumed correct where record insufficient to resolve underlying factual issues to demonstrate reversible error). Accordingly, the trial court’s final judgment denying costs to Saltsgaver in case CCO-01-812 shall be affirmed.

III. AYERS’ APPEAL

A. Relevant Facts and Procedural History

As previously established, Ayers initially brought suit against State Farm in case number CCO-00-5441 and then later filed five additional lawsuits. In February 2001, Ayers served a request for admissions regarding the attorney fee and cost issues to State Farm pertaining to case numbers CCO-00-5441, CCO-01-812, and CCO-01-1246.

In February 2001, State Farm filed its responses to those requests, and denied, inter alia, the following: (1) That the Orlando area legal market requires a contingency fee multiplier to obtain competent counsel; (2) that the attorneys were unable to mitigate the risk of non-payment in any way; (3) that $285.00 per hour was a reasonable hourly rate for the services of Saltsgaver; and (4) that $225.00 per hour was a reasonable hourly rate for the services of Weiss.

Although State Farm denied some of the elements that form the basis for entitlement to a multiplier, it admitted that Ayers’ attorneys were entitled to a fee multiplier, and denied his entitlement to fees and costs was ever contested. All the cases were subsequently consolidated by the trial court in March 2001.

Ayers contends on appeal that in order to determine the basis for State Farm’s denials to his request for admissions, and to prepare for the fee hearing held in August and September 2001, he was required to depose State Farm’s attorney fee expert, Michael Bell (“Bell”), its PIP Unit Supervisor, Debra Connelly (“Connelly”), and its adjuster, Sarah Butler-Rhodes (“Rhodes”). At the hearing, State Farm stipulated to a $300.00 hourly rate for Saltsgaver and a $225.00 hourly rate for Weiss; however, it contested fees and costs incurred in the five subsequent lawsuits. The trial court found in favor of Ayers in all of the lower court cases.

On October 1, 2001, Ayers served a Motion to Tax Supplemental Attorney’s Fees and Costs incurred in all of the lower court cases. In his motion, Ayers claimed he was entitled to an award of attorneys’ fees for having to prepare for and attend the depositions and the fee hearing as the result of State Farm’s failure to admit issues upon which he prevailed.

A hearing was held, and the trial court entered six orders pertaining to all of the lower court cases, which denied Ayers’ motion. He timely filed his Notice of Appeal in CVA1-02-27, which is now consolidated into CVA1-01-63.

B. Ayers’ Arguments on Appeal

Ayers first contends State Farm’s fee expert, Bell, testified at both his deposition and the fee hearing, that Saltsgaver was not entitled to any fees at all, and presented additional evidence that there was no need to file the subsequent lawsuits. Consequently, he claims it was necessary for him to prove entitlement to Saltsgaver’s fees and costs at the hearings. Thus, he contends the trial court erred in denying supplemental fees for time expended in proving Saltsgaver’s fee entitlement, including the preparation for and attendance at the depositions and hearings.

Ayers next contends that the testimony in the depositions of Bell, Connelly, and Rhodes clearly show State Farm had no factual basis for denying his requests for admissions. He further argues Connelly’s testimony that State Farm did not agree to anything regarding his claim for fees required him to present evidence as to all of the fee components at the hearing, which included the number of hours, hourly rate, and multipliers. He argues State Farm should have admitted there was a pure contingency fee contract, that the market required a multiplier to obtain competent counsel, that the attorneys were unable to mitigate the risk of non-payment, and that $285.00 and $225.00 were reasonable hourly rates for Saltsgaver and Weiss, respectively. Because he ultimately proved these issues at the hearing, he maintains the trial court erred in denying his supplemental fees.

Finally, Ayers claims that the trial court erred in failing to include findings of fact in its orders denying his motion for supplemental fees. State Farm files no response in this appeal.

C. Standard of Review and Relevant Law

Florida Rule of Civil Procedure 1.380 governs sanctions for the failure to make discovery. In pertinent part, it provides that if a party denies the truth of any matter as requested in the opposing party’s request for admissions, and the opposing party later proves the truth of the matter, then that party may be entitled to reasonable expenses incurred in having to prove the matter, including attorneys’ fees. Fla. R. Civ. P. 1.380(c). “The standard of review for the imposition of sanctions is whether there was an abuse of discretion by the trial court.” Smith v. Spitale, 675 So. 2d 207, 209-10 (Fla. 2d DCA 1996).

When attorneys’ fees are requested as a sanction for litigating the issue of attorneys’ fees, it is proper to make such award. See Condren v. Bell, 28 Fla. L. Weekly D2176 (Fla. 4th DCA Sept. 17, 2003), superceding and clarifying opinion withdrawn in 28 Fla. L. Weekly D1766 (Fla. 4th DCA July 30, 2003).

D. The Instant Case

As a preliminary matter, Ayers’ motion filed below requesting supplemental fees and costs was addressed to all six of the lower court cases, as it was filed after the trial court consolidated the five subsequent cases with CCO-00-5441. The record, however, reveals that Ayers’ requests for admissions were served in only three of the lower court cases and State Farm’s responses pertained to only those three cases, which include case numbers CCO-00-5441, CCO-01-812, and CCO-01-1246. The requests for admissions and State Farm’s responses thereto were made in February 2001, before the cases were consolidated.

Because there is no evidence in the record that shows Ayers served any requests for admissions or that State Farm responded in the remaining case numbers CCO-00-11426, CCO-00-12484, and CCO-00-14622, this Court is unable to conclude the trial court erred in entering its orders denying Ayers’ motion to tax supplemental fees and costs that were incurred due to State Farm’s alleged failure to make admissions in these particular cases. Accordingly, this Court shall affirm those orders. See Applegate, 377 So. 2d at 1152 (decision of trial court presumed correct where record insufficient to resolve underlying factual issues to demonstrate reversible error).

Turning to the remaining cases, in paragraph five of his motion requesting supplemental fees and costs, Ayers claimed State Farm denied his attorneys were entitled to a multiplier, that they were entitled to a certain hourly rate, and that their time was reasonable and necessary, in response to the requests for admissions. He also noted State Farm maintained these denials during the depositions and the fee hearings.

As a result, Ayers claimed his counsel was required to prepare for and depose State Farm’s witnesses and fee expert, and attend the fee hearings and present evidence as to all issues, including time, hourly rate, and the multiplier. He contended it was not until the hearings that State Farm stipulated his attorneys were entitled to their requested hourly rate. Because State Farm refused to admit any of the issues upon which he prevailed in its response to his requests for admissions, Ayers maintained he was entitled to attorneys’ fees for the time he spent litigating those issues.

Based upon the evidence in the record, it can not be said that the trial court abused its discretion in denying Ayers’ motion for supplemental fees and costs under Rule 1.380(c). Although State Farm denied that the market required a multiplier and that the attorneys were unable to mitigate the risk of non-payment, it nevertheless admitted Ayers’ attorneys were entitled to a multiplier. Indeed, Ayers raised this point in his amended answer filed in State Farm’s direct appeal. Thus, Ayers’ claim in his motion before the trial court that State Farm denied his attorneys were entitled to a multiplier is inaccurate.

Ayers’ allegations that State Farm continued to deny his entitlement to fees during the depositions and during the hearing are irrelevant for purposes of considering whether he is entitled to attorneys’ fees under Rule 1.380(c), as that rule applies only to a party’s failure to admit to requests for admissions. It follows, therefore, that Ayers is not entitled to any fees or costs he claims were incurred in having to prove his attorneys were entitled to a multiplier because State Farm never denied that fact in its responses.

Likewise, Ayers’ claim in his motion below that he should receive supplemental fees and costs for having to litigate State Farm’s denial that the time expended by his attorneys was reasonable and necessary is also without merit. Ayers did request State Farm to admit this fact in its requests for admissions; however, contrary to Ayers’ assertion that it was denied, State Farm admitted this fact in all three cases. Moreover, in its responses, State Farm denied Ayers’ entitlement to fees and costs was ever contested. Again, the fact that State Farm subsequently disputed his entitlement to fees for the five subsequent lawsuits is irrelevant for purposes of Rule 1.380(c).

Finally, although State Farm denied that $285.00 and $225.00 were reasonable hourly rates for the services of Saltsgaver and Weiss, respectively, Ayers is not entitled to fees and costs for having to litigate these issues. Expenses incurred by a successful litigant as a result of the opposing party’s failure to admit requests for admissions may not be assessed unless the admission pertains to a “hotly-contested, central issue to the case.” Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So. 2d 1107, 1113 (Fla. 3d DCA 2000).

In the instant case, the hourly rates for the services of Saltsgaver and Weiss were not hotly-contested, central issues of this case. Moreover, there is no evidence that State Farm’s denial of the hourly rates was made in bad faith or that the fact was known with certainty at the time the admissions were requested. See Eve’s Garden, Inc. v. Upshaw & Upshaw, Inc., 801 So. 2d 976(Fla. 2d DCA 2001) (purpose of legal sanction of award of attorneys’ fee award in discovery dispute is both to punish the recalcitrant party, to reimburse the victim, and to deter similar conduct by others in further litigation). The record shows State Farm qualified its denial of the hourly rates because no fee hearing had been held at that point and it was unsure what the trial court would deem to be a reasonable hourly rate. Accordingly, the record fails to support an award of attorneys’ fees and costs as sanction under Rule 1.380(c).

Ayers’ final argument is that the trial court’s orders denying his supplemental fees and costs should be reversed and remanded as a matter of law because the trial court failed to state any findings of fact to support its denials. See Arena Parking, 768 So. 2d at 1112 (trial court abused its discretion in summarily denying request for attorneys’ fees incurred as result of failure to admit in response to requests for admissions without making findings of fact). Ayers correctly contends that the trial court failed to make any findings of fact in its orders denying the supplemental fees and costs. Moreover, there was no transcript of the hearing presented to this Court to determine if oral findings were made. Nevertheless, the record supports the trial court’s denial of Ayers’ motion. Accordingly, the trial court’s remaining orders denying his request for supplemental fees and costs shall be affirmed. See International Community Corp. v. Orange Entertainment Center, Inc., 490 So. 2d 169, 170 (Fla. 5th DCA 1986) (where lower court fails to state basis for its decision and makes no findings of fact it must be affirmed if there is valid basis in the record for doing so).

E. Ayers’ Motion to Tax Appellate Attorney’s Fees

Ayers claims he is entitled to an award of appellate attorneys’ fees if he is the prevailing party in this appeal pursuant to Florida Rule of Appellate Procedure 9.400 and Section 627.428, Florida Statutes. Because Ayers’ request for supplemental fees and costs was made as a discovery sanction, it is not a claim under his insurance policy within the scope of Section 627.428. See Gibson v. Walker, 380 So. 2d 531 (Fla. 5th DCA 1980) (claim is within the scope of Section 627.428 where insurance company denies or contests insured’s entitlement to attorneys’ fees). See also Nu-Best, 810 So. 2d at 515 (Rule 9.400 contemplates allowance of attorney’s fees only if otherwise authorized by substantive law). Accordingly, Ayers’ Motion to Tax Appellate Attorney’s Fees pertaining to his appeal shall be denied.

Based upon the foregoing, it is hereby ORDERED and ADJUDGED that:

1. The trial court’s three final judgments awarding attorney’s fees and costs to Saltsgaver in case numbers, CCO-00-5441, CCO-01-812, and CCO-01-1246 are AFFIRMED.

2. The trial court’s five final judgments awarding attorney’s fees and costs to Weiss in case numbers CCO-00-5441, CCO-00-11426, CCO-00-12484, CCO-00-14622, and CCO-01-812 are AFFIRMED.

3. Ayers’ Amended Motion to Tax Appellate Attorney’s Fees pertaining to State Farm’s Appeal is GRANTED. This cause is REMANDED to the trial court to assess the amount of attorney’sfees. Fla. R. App. P. 9.400(b). Ayers shall have thirty days from the issuance of the mandate to file a proper motion with the trial court to tax any costs. Fla. R. App. P. 9.400(a).

4. Ayers’ “Motion for Attorney’s Fees Pursuant to FS 57.105 and/or Rule 9.410,” and “2nd Motion for Attorney’s Fees Pursuant to FS 57.105 and/or Rule 9.410,” pertaining to State Farm’s Appeal are GRANTED. This cause is REMANDED to the trial court to determine Ayers’ reasonable appellate attorneys’ fees incurred since the date State Farm filed its reply brief. Such fees shall be assessed equally between State Farm and its respective appellate counsel.

5. Ayers’ “Motion for FS 57.105 Attorney’s Fees” is DENIED.

6. The trial court’s Final Judgment Awarding Attorney’s Fees and Costs in case number CCO-01-812, pertaining to Ayers’ cross appeal in which he challenges the denial of costs to Saltsgaver is AFFIRMED.

7. The trial court’s six orders denying Ayers’ motion to tax supplemental attorney’s fees and costs in case numbers CCO-00-5441, CCO-00-11426, CCO-00-12484, CCO-00-14622, CCO-01-1246, and CCO-01-812 are AFFIRMED.

8. Ayers’ Motion to Tax Appellate Attorney’s Fees pertaining to his appeal is DENIED.

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¹Moreover, when this Court addressed Ayers’ motion to dismiss, it had not yet reached the merits of this appeal. Thus, the Court was not yet confronted with the issue of whether it should consider the amended final judgments to determine the outcome of this appeal.

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