11 Fla. L. Weekly Supp. 617c
Attorney’s fees — Insurance — Appeals and cross-appeals of two fee final judgments — Amount — No merit to claim that lower court fixed attorney’s hourly rate at $250 where record shows lower court did not reach decision at fee hearing but merely stated that it would use $250 rate as starting point to make decision after reviewing proposed judgments — Amount of fees awarded is not excessive or unreasonable merely because it exceeds amount of recovery — Lower court did not abuse discretion in accepting attorneys’ time records where insurer did not object to records produced or point out which hours should be deducted as unreasonable or unnecessary — No error in not awarding prejudgment interest on fees where issue was not raised at fee hearing — Costs — No error in awarding costs for depositions with apportionment as to pages utilized — Remand for clarification of whether all appropriate costs were included in fee judgment that is silent as to costs
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant/Cross-Appellee, vs. ARMANDO DANIEL, Appellee/Cross-Appellant. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-205 AP. L.C. Case No. 99-9523 SP 25 (01). April 27, 2004.An Appeal from the County Court for Miami-Dade County, Wendell M. Graham, J. Counsel: Lawrence E. Root, Office of the General Counsel of United Automobile Insurance Company, for Appellant/Cross-Appellee. Adolfo A. Podrecca, Fazio, Dawson, DiSalvo, Cannon, Abers, Podrecca, Fazio & Carroll P.A., for Appellee/Cross-Appellant.
(Before JOSE M. RODRIGUEZ, DENNIS J. MURPHY, and DAVID C. MILLER, JJ.)
(RODRIGUEZ, J.) The Appellant/Cross-Appellee, United Automobile Insurance Co., appeals two separate fee final judgments both dated May 18, 2002 awarding attorney’s fees and costs to counsel for
the Appellee. The Appellee/Cross-Appellant, Armando Daniel, cross-appeals both fee final judgments as to the costs awarded and an order dated January 23, 2003 nunc pro tunc denying his motion for prejudgment interest on attorney’s fees and costs. While affirmed in all other respects, the fee final judgment for Appellee’s counsel, Aldofo A. Podrecca, Esq. is remanded to correct a mathematical miscalculation of his total amount of attorney’s fees. The fee final judgment for Appellee’s counsel, Joseph Rodriquez, Esq. is also affirmed. On cross-appeal, we affirm the fee final judgment for Joseph Rodriquez, Esq. as to costs and the nunc pro tunc order as to prejudgment interest. However, we remand the fee final judgment for Aldofo A. Podrecca, Esq. for clarification as to whether all appropriate costs were included in the award. The award of expert witness fees is not challenged.
I.
The Appellant/Cross-Appellee contends on appeal that the lower court erred by awarding attorney’s fees pursuant to §627.428, Fla. Stat. (1997) as: 1) the rate of $250.00 per hour of Aldofo A. Podrecca, Esq. was fixed below; 2) the fees were excessive and unreasonable and; 3) a mathematical miscalculation of the lodestar amount occurred. To award attorney’s fees, the procedures outlined in Florida Patients’ Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.
1985) are followed. See Key West Polo Club Developers Inc. v. Towners Constr. Co. of Panama City Inc., 589 So. 2d 917, 918 (Fla. 3d DCA 1991). Based on the proffered record evidence below, the lower court properly determined the hourly rates and number of hours for both counsel of the Appellee.
While the Appellant claims that the lower court below fixed the rate for Aldofo A. Podrecca, Esq. at $250.00, the record below does not establish this fact. Instead, the record shows the lower court did not reach its decision at the fee hearing as it had to review the proffered evidence. In requesting both parties to prepare proposed judgments, the lower court had instructed both parties that it would merely use the rate of $250.00 as a starting point. However, it would then look at both proposed judgements and make a decision.
Further, the fees awarded were not excessive nor unreasonable. Rather, they were within the range of the fee expert proffered testimony. See Fireman’s Fund Ins. Co. v. Vordermeier, 415 So. 2d 1347, 1351 (Fla. 4th DCA 1982); Maine Ins. Co. v. Raser, 240 So. 2d 163, 164 (Fla. 3d DCA 1970). Merely because the amount of attorney’s fees awarded in this case was higher than the amount of recovery did not make the fees excessive or unreasonable. See State Farm Fire & Cas. Co. v. Palma, 555 So. 2d 836, 838 (Fla. 1990).
However, we agree that the fee final judgment for Aldofo A. Podrecca, Esq. facially shows a mathematical miscalculation of the total lodestar amount. The total lodestar amount based on 215 hours at a rate of $275.00 per hour results in a calculation of $59,125.00 and not the amount awarded. Therefore, a remand is required to correct the amount awarded.
Lastly, the Appellant/Cross-Appellee argues on appeal that the lower court abused its discretion by overruling its’ objection and awarding the number of hours claimed by both counsel for the Appellee as they had not proven their entitlement to the fees claimed. Although the Appellee had the burden of establishing entitlement to an award of attorney’s fees, the appellant had the burden of pointing out with specificity which hours should be deducted as unreasonable or unnecessary. See Centex-Rooney Constr. Co. v. Martin County, 725 So. 2d 1255, 1259 (Fla. 4th DCA 1999).
Both fee final judgments stated that the Appellant’s objection was overruled as to the number of hours due to its failure to file objections in a timely manner as required by a scheduling order. The record reflects that a scheduling order required the Appellant to object in writing to the attorneys’ time records produced by the Appellee within twenty days of the date of the order. The Appellant did not object to any of these records produced nor did it seek an extension of time or a continuance. As the Appellant failed to point out which hours should be deducted as unreasonable or unnecessary by objecting, we find that the lower court did not abused its discretion in accepting the Appellee’s attorneys’ time records.
II.
The Appellee/Cross-Appellant contends on cross-appeal that the lower court erred in failing to award pre-judgment interest on attorney’s fees from the date of the final judgment to the date of the two fee final judgments. Pre-judgment interest on attorney’s fees accrues from the date the entitlement to the attorney’s fees is fixed. See Quality Engineered Installation Inc. v. Higley South, Inc., 670 So. 2d 929, 931 (Fla. 1996). However, awarding pre-judgment interest on attorney’s fees is not automatic by law without properly raising this issue at a hearing.
In regards to the nunc pro tunc order under review, the record reveals that the issue of pre-judgment interest on attorney’s fees was not raised at the fee hearing below. See State v. Cornuz, 816 So. 2d 827, 828 (Fla. 3d DCA 2002) (in order to be preserved for appellate review, an issue must be presented to the lower court). Further, the two fee final judgments are completely silent on this issue including reserving any jurisdiction. Most notably, the record reveals that this issue was not even raised until after the entry of these two judgments. As this issue was not raised below, we do not find that the lower court erred.
Lastly, the Appellee/Cross-Appellant contends on cross-appeal that the lower court erred by failing to award additional costs for: 1) two depositions of Appellant’s adjusters; 2) the first trial transcript of Appellant’s insurance agent; and 3) the deposition of its fee expert. The costs of depositions that are not used at trial are taxed if shown to be reasonably necessary. See Orlando Regional Med. Ctr. Inc. v. Chmielewski, 573 So. 2d 876, 883 (Fla. 5th DCA 1990), rev. denied, 583 So. 2d 1034 (Fla. 1991).
The record shows at the fee hearing below, in awarding costs to Aldofo A. Podrecca, Esq., that the lower court orally granted the above additional costs with the exception that the depositions be apportioned as to the pages utilized. We agree that this finding was not error by the lower court. Further, the costs awarded to Joseph Rodriquez, Esq. were agreed upon below and therefore we find no error in this award.
However, the face of the fee final judgment for Aldofo A. Podrecca, Esq. is silent as to the above additional costs or is unclear whether the total amount of costs included these additional costs. Therefore, we remand this issue of the additional costs in order for the lower court to clarify this fee final judgment. See B & H Constr. & Supply Co. v. District Bd. of Trustees of Tallahassee Community College Fla., 542 So. 2d 382, 391 (Fla. 1st DCA), rev. denied, 549 So. 2d 1013 (Fla. 1989).
AFFIRMED EXCEPT TO REMAND IN PART AS TO THE APPEAL AND AFFIRMED EXCEPT TO REMAND IN PART AS TO THE CROSS-APPEAL. Appellee/Cross Appellant’s motion for appellate attorney’s fees and costs pursuant to §627.428, Fla. Stat. is hereby granted as to the appeal and denied as to the cross-appeal. (MURPHY and MILLER, JJ. concur).
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