19 Fla. L. Weekly Supp. 71a
Online Reference: FLWSUPP 1902ASPIInsurance — Personal injury protection — Attorney’s fees — Amount — No abuse of discretion in awarding $25 per hour rate increase to medical provider’s attorney where decision was supported by competent substantial evidence in form of expert testimony — Appellate fees — Justiciable issues — Appellate attorney’s fees are awarded to provider where insurer’s decision to appeal rate increase was not supported by facts or law
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. COMPREHENSIVE HEALTH CENTER, LLC, (a/a/o Jean J. Aspilaire), Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-108 AP. L.T. Case No. 08-01312 SP 05 (1). October 28, 2011. An Appeal from the County Court for Miami-Dade County. Counsel: Thomas L. Hunker, Office of the General Counsel, for Appellant. Marlene S. Reiss, Marlene S. Reiss, P.A., for Appellee.
(Before LEDERMAN, COHEN, and CYNAMON, JJ.)
(CYNAMON, Judge.) Appellant United Automobile Insurance Company (“United Auto”) appeals the trial court’s final judgment taxing attorney’s fees and costs, dated February 19, 2010. That order was signed subsequent to a hearing, in which the trial court heard expert testimony from both sides on what each considered to be a reasonable attorney’s fee.
Mr. Doherty, the attorney for medical provider Comprehensive Health Center, LLC (“Comprehensive”), testified that his previous rate had been $425/hour, but that in this hearing, he was seeking a rate increase to $450/hour. He had another attorney who had assisted him, Marlene Reiss, who had written and argued a contested motion concerning the disclosure and acknowledgement form, and she also sought a fee of $450/hour. Their fee attorney expert, Greg Schwartz, Esq., supported their bid for that $450/hour rate.
In opposition, United Auto’s expert, Sarah Engel, Esq., argued for a reduced number of hours and for a rate of $400/hour for both attorneys. She cited to other area attorneys with similar experience to Doherty and Reiss, and testified that they earned only $400/hour. She also contended that Doherty only procured a 60% recovery, and that the case was simple because there had been little or no trial preparation.
The trial court ultimately reduced Doherty to 42.9 hours (he had asked for 54.1 hours), but granted his wish to increase his rate to $450/hour. The court also awarded Reiss 32.6 hours (she had asked for 44.62 hours) at the same rate. She also awarded Comprehensive’s expert, Schwartz, 8.7 hours at $425/hour for appearing as an expert. With interest and costs, the judgment on attorney’s fees amounted to $42,420.00. United Auto filed a timely appeal, contending that the trial court abused its discretion in awarding United Auto’s attorney an hourly rate of $450.00 per hour, as that amount was not supported by substantial competent evidence.
The issue before this panel is whether or not the final judgment taxing attorney’s fees and costs should be affirmed. We conclude that it should, as it was supported by substantial competent evidence.
We are persuaded by Comprehensive’s argument that the trial court’s decision to award a $25/hour rate increase to its lead attorney was a decision that was supported by substantial competent evidence. Further, judicial discretion will not be disturbed on appeal absent a showing of clear abuse of that discretion. DiStefano Construction, Inc. v. Fidelity and Deposit Co. of Maryland, 597 So. 2d 248, 250 (Fla. 1992). Discretion is only abused where no reasonable man would take the view adopted by the trial court. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). If reasonable men (and judges) could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of abuse of discretion. Id.
Here, there was no abuse of discretion since the trial court’s decision was supported by substantial, competent evidence in the form of testimony provided by the attorney and by his expert witness. The Trial Court heard from the attorney, Mr. Doherty, as well as his fee expert, Greg Schwartz, Esq., and United Auto’s expert witness, Sarah Engel, Esq. The Court concluded that the number of requested fee hours be reduced by 20%, but concluded that the attorney’s hourly rate should be increased from $425/hour to $450/hour. The attorney’s decision to ask for this rate was based on what other experienced trial lawyers in the PIP field had told him were reasonable rates and based on his 35-year own career, with its skill, experience, reputation, expertise, and knowledge. We affirm the fee judgment.
Additionally, we conclude that Appellee Comprehensive is entitled to appellate attorney’s fees pursuant to §57.105(1), Fla. Stat. (2010), as the prevailing party. That section states that:
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then existing law to those material facts.
Here, United Auto’s decision to appeal the trial court’s increased fee award of $25/hour was not a decision that is supported by the facts or the law. As explained previously, the trial court’s decision was not an abuse of discretion since it was supported by substantial competent evidence in the form of expert testimony. As such, there were no valid grounds for appeal by United Auto. Therefore, the Appellant, as well as the Appellant’s counsel, are responsible for attorney’s fees under §57.105(1), Fla. Stat. (2010). We remand to the trial court for proceedings consistent with this opinion. (LEDERMAN and COHEN, JJ., concur.)
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