16 Fla. L. Weekly Supp. 502d

Online Reference: FLWSUPP 166ORDOQ

Insurance — Personal injury protection — Attorney’s fees — Amount — Hourly rate — Competent substantial evidence supports finding that higher than normal hourly rates are reasonable hourly rates — Where trial court did not apply contingency risk multiplier, it was not required to make specific findings regarding multiplier or apply Rowe factors — Appellate fees — Justiciable issues — Appellate fees are awarded to prevailing medical provider under section 57.105 where insurer’s appeal was based on incorrect application of case law, and insurer further undermined its appellate arguments by failing to submit attorney timesheets — Provider’s request for award of fees for litigating amount of fees is denied — Request for rule 9.410 sanctions is denied

UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. CONTEXT MEDICAL GROUP, INC., a/a/o MIGUEL ORDOQUI, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-064 AP. L.C. Case No. 06-13889 CC 23 (05). April 9, 2009. On Appeal from the County Court of Miami-Dade County, Hon. Don S. Cohn. Counsel: Thomas L. Hunker, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Marlene S. Reiss, Marlene S. Reiss, Esq., PA., for Appellee.

(Before DONNER, KREEGER, and GROSS, JJ.)

(PER CURIAM.) Context Medical Group, Inc. (“Context Medical”) moved the county court for attorney’s fees pursuant to Florida Statute § 627.428. The county court granted Context Medical’s motion and entered final judgment for fees and costs.

The county court’s fee award was based on its finding that Mr. Rodier’s $400 per hour billing rate and Mr. Boyd’s $350 per hour billing rate were reasonable. On appeal, United Auto asks us to reverse the final judgment and remand for the county court to base Mr. Rodier’s fee award on $350 per hour and Mr. Boyd’s on $250 per hour, finding the higher rates to be unreasonable.

We review the “amount of a fee award” for an “abuse of discretion.” Attorney’s Title Ins. Fund, Inc. v. Landa-Posada, 984 So. 2d 641, 643 (Fla. 3d DCA 2008). An “erroneous interpretation and application of Florida law” regarding attorney’s fees requires “de novo” review. Id. We consider whether the county court abused its discretion by awarding attorney’s fees to Context Medical’s counsel at a higher hourly rate than normally awarded. Competent and substantial evidence justifies the county court’s findings, and we find no abuse of discretion.

In its Reply Brief, United Auto argued that the county court’s order constitutes reversible error “because the record does not contain findings based on the Rowe factors supporting its conclusions as to reasonable hourly rates.”

Florida courts defined the lodestar as the “number of hours reasonably expended” multiplied by “a reasonable hourly rate.” Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985). “Once the [trial] court arrives at the lodestar figure, it may add or subtract from the fee based upon a ‘contingency risk’ factor.” Id. (emphasis added). In “cases where application of the contingency risk factor may be appropriate, the court must conduct an evidentiary hearing and make findings which support the fee enhancement.” Travelers Indemnity Co. v. Sotolongo, 513 So. 2d 1384, 1385 (Fla. 3d DCA 1987) (emphasis added). An order “awarding attorneys’ fees is ‘fundamentally erroneous on its face’ when the trial court fails ‘to make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors‘.” Parton v. Palomino Lakes Property Owners Assoc., Inc., 928 So. 2d 449, 453 (Fla. 2d DCA 2006) (emphasis added).

Here, the county court found that Mr. Rodier expended 37.95 hours, and Mr. Boyd expended 49.80 hours. The county court also found $400.00 a reasonable hourly rate for Mr. Rodier and $350.00 a reasonable hourly rate for Mr. Boyd. Thus, the county court calculated a lodestar. The county court did not specifically order an enhancement to the lodestar. Nothing obligates the county court to adjust the lodestar. See Quanstrom, 555 So. 2d at 831 (clarifying Rowe to mean that “the words ‘must consider’ do not mean ‘must apply,’ but mean ‘must consider whether or not to apply’ the contingency fee multiplier”) (emphasis in original) (emphasis added); Sotolongo, 513 So. 2d at 1385 (stating that “the court is not obligated to adjust the lodestar fee in every case where a successful prosecution of the claim was unlikely”) (citing Rowe, 472 So. 2d at 1151). Because the county court did not apply a contingency risk multiplier, the law did not require the county court to make a specific finding regarding a contingency multiplier or apply the Rowe factors. See Rowe, 472 So. 2d at 1151 (stating, “If the court decides to adjust the lodestar, it must state the grounds on which it justifies the enhancement or reduction”). Therefore, the county court properly calculated the lodestar, made the correct findings in its final judgment, and correctly declined to address the Rowe factors in its final judgment.

Next, we address Context Medical’s request for § 57.105 appellate attorney’s fees. An appellant presents a frivolous appeal “if it presents no justiciable question and is so devoid of merit on the face of the record that there is little prospect it will ever succeed.” Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So. 2d 146, 152 (Fla. 3d DCA 2002). See Visoly v. Security Pacific Credit Corp., 768 So. 2d 482, 491 (Fla. 3d DCA 2000) (stating that “an appeal which lacks a factual basis or well-grounded legal argument will be considered devoid of merit”) (emphasis added). A court may define an action as frivolous “where a case is found: (a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.” Id. (emphasis added).

United Auto’s interpretation of the case law does not support its arguments regarding the Rowe factors. Had United Auto applied these cases properly to the facts in the record and transcript, it would not have brought this appeal. We consider that United Auto did not submit Mr. Rodier or Mr. Boyd’s timesheets for our review, thus undermining its appellate arguments.¹ We find that United Auto’s appeal lacked a “well-grounded legal argument.” Visoly, 768 So. 2d at 491. Therefore, we grant Context Medical’s motion for § 57.105 appellate attorney’s fees.

Context Medical moved us for appellate attorney’s fees pursuant to Florida Rule of Appellate Procedure 9.400(b). Context Medical asserts its entitlement to appellate attorney’s fees under § 627.428(1) and appellate sanctions pursuant to Florida Rule of Appellate Procedure 9.410. We deny Context Medical’s request for § 627.428(1) appellate attorney’s fees because a prevailing party may not recover appellate attorney’s fees for litigating the amount of attorney’s fees instead of litigating entitlement to attorney’s fees. State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993). We deny Context Medical’s request for Florida Rule of Appellate Procedure 9.410 appellate sanctions.

Affirmed and remanded to the county court to calculate the § 57.105 appellate attorney’s fees.

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¹See Ocean Club Community Association, Inc. v. Curtis, 935 So. 2d 513, 517 (Fla. 3d DCA 2006) (stating that a “review of Mr. Capua’s timesheets, the record on appeal, and the order awarding over $42,000 in attorney’s fees to the plaintiff, indicates that the trial court abused its discretion because it awarded attorney’s fees for services rendered that were clearly not related to the conversion claim”) (emphasis added).