8 Fla. L. Weekly Supp. 592a
Attorney’s fees — Appellate — Insurance — Personal injury protection — Contingency risk multiplier — Fee hearing held pursuant to section 627.428 is not hearing to litigate the validity or enforceability of contract between insured and insured’s attorney, but is a hearing to permit the insured to collect fees for distribution to his or her attorney — Insurance company is in no position to challenge contract between insured and insured’s attorney at this hearing — Existence of valid contingency fee agreement is just one of the factors to be considered by trial court when it awards a multiplier — Competent substantial evidence supports trial court’s decision to apply contingency risk multiplier — No error in allowing award of appellate fees for work done on appeal before appellate counsel filed notice of appearance
ALLSTATE INSURANCE COMPANY, Appellant, v. RICARDO BELLON, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 00-224AP. Lower Court Case No. 96-17149 SP 05. Opinion filed July 10, 2001. An Appeal from the County Court for Miami-Dade, Florida, Linda Dakis, J. Counsel: Jacqueline G. Emanuel, for Appellant. Robert A. Robins and Arthur Joel Berger, for Appellee.APPELLATE OPINION
(ELLEN L. LEESFIELD, J.) This appeal by Allstate Insurance Company solely concerns Attorneys Fees awarded Plaintiff/Appellee, Bellon, for his appellate attorney’s performance of duties within a PIP action that resulted in a verdict for the Plaintiff, Bellon. Allstate has raised six points on appeal in reference to attorney’s fees. We write to address only two.
I. THE AWARD OF A MULTIPLIER.
Appellant requests that this Court vacate the order that awarded attorney’s fees. In its April 28th, 2000 Order Granting Plaintiff’s Motion for Appellate Attorneys Fees, paragraph three (3), the trial court held and recognized that both parties stipulated to Appellee’s entitlement to appellate attorney’s fees. However, appellant claims that the trial court erred when it awarded a multiplier to the Appellee’s appellate counsel in the absence of a valid contingency agreement as required under Standard Guarantee Insurance Company v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990). The award of a multiplier by a trial court is reviewed under an abuse of discretion standard. State Farm Fire & Casualty Company v. Palma, 629 So. 2d 830, 833 (Fla. 1993) citing Quanstrom at 831.
The contingency agreement between appellee’s trial counsel and appellee contained a section that enabled the trial counsel to enlist appellate counsel. The appellate counsel would be bound under the same contingency contract in the event of an appeal. The appellate counsel for appellee did not sign this retainer agreement. Therefore, appellant argues, there was never a valid contingency agreement in force that would allow the award of a multiplier, because the agreement as applied to appellate counsel violated R. Regulating Fla. Bar 4-1.5(f)(2). Appellant Allstate relies upon Chandris, S.A. v. Yanakakis, 668 So. 2d 180,185-86 (Fla. 1995) which states that an attorney contingency fee agreement is unenforceable if an attorney has violated the rules of professional conduct.
Appellant Allstate’s reliance on Chandris, S.A. v. Yanakakis is misplaced. In Chandris, an attorney who was not a member of the Florida Bar signed an agreement to represent a seaman (Miliaresis) in a personal injury case. Chandris held that this out of state attorney, not affiliated with a Florida law firm, was therefore engaged in the unauthorized practice of law, and the agreement entered into was, itself, void. The seaman, Miliaresis, subsequently signed a second fee agreement in which attorney, Yanakakis, added a Florida law firm. The fee agreement was signed, again by Yanakakis, but not by the Florida law firm. The agreement was silent as to the distribution of fees as between Yanakakis and the Florida law firm. Without the signature of an attorney who was a member of the Florida Bar, the contract remained void ab initio and not enforceable by the attorneys. When the seaman, Miliaresis, was induced by the defendants to settle directly, the plaintiffs in the Chandris case (Yanakakis and the Florida law firm) filed an action, alleging that the defendant (Chandris) intentionally induced Miliaresis to discharge the plaintiffs by fraud and coercion, thereby tortiously interfering with the plaintiff’s advantageous business relationship with Miliaresis and, basically, suing on the contract. Following a judgment for the plaintiffs, Chandris appealed. Chandris then argued on appeal, and the Florida Supreme Court agreed (on remand from the 11th Circuit for a ruling on State Law), that a contingency fee contract entered into that fails to adhere to the requirements of the Florida Bar is against public policy and is not enforceable by the member of the Florida Bar who has violated the rule. Specifically, Chandris cites to R. Regulating Fla. Bar 4-1.5(f)(2). This rule, however, was “not intended to shield a non-prevailing party from the payment of attorney’s fees,” Corvette Shop & Supplies, Inc. v. Coggins, 779 So. 2d 529, 531 (Fla. 2d DCA 2000) and the instant case is not analogous to the essential point discussed in Chandris.
A fee hearing held pursuant to section 627.428, Fla. Stat. (2000) is not a hearing to litigate the validity or enforceability of a contract between the insured and the attorney who represents him. A fee hearing is a hearing for the insured-client to permit the client to collect his fees for the client to distribute to his or her attorney. The award is legally an award to the insured, and it is the insured’s right to obtain the funds from the insurer that are to be used by the insured to pay his or her attorney. Florida law is clear that where a dispute that leads to a judgment against the insurer and in favor of the insured, attorney’s fees shall be awarded to the insured. If a dispute arises between an insurer and an insured, and judgment is entered in favor of the insured, he or she is entitled to attorney’s fees. Ivey v. Allstate Insurance Company, 774 So. 2d 679 (Fla. 2000). Whereas this hearing was legally a hearing between Mr. Bellon and his insurance company, the insurance company is in no position to challenge the contract. Appellant/insurance company Allstate cannot invoke Chandris and a Florida Bar Rule for protection from paying fees to a plaintiff-insured who is clearly entitled to them. To apply Chandris in this overly broad manner would not further the intent of R. Regulating Fla. Bar 4-1.5(f)(2): to protect the Public. See Corvette Shop & Supplies, Inc. v. Coggins, supra.
Moreover, this is a public policy case. The existence of a valid contingency fee agreement is just one of the factors a trial court will consider when it awards a multiplier. See Quanstrom, 555 So. 2d at 834, see also Bell v. U.S.B. Acquisition Company, Inc., 734 So. 2d 403, 408-410 (Fla. 1999).
An Appellate court will not disturb the lower court’s decision either as to the lodestar amount or the application of a contingency risk multiplier, absent a clear abuse of discretion. DiStefano Construction Inc. v. Fidelity and Deposit Company of Maryland, 597 So. 2d 248, 250 (Fla. 1992); Afrazeh v. Miami Elevator Company of America, 769 So. 2d 399, 401 (Fla. 3d DCA 2000); Quanstrom at 834. “The trial court’s findings of fact with regard to an award of attorney’s fees are presumed to be correct, see Alternative Development, Inc. v. St. Lucie Club & Apartment Homes Condominium Association, 608 So. 2d 822, 828 (Fla. 4th DCA 1992), and the appellate court should not substitute its judgment for that of the trial court.” Centex-Rooney Construction Company v. Martin County, 725 So. 2d 1255, 1258 (Fla. 4th DCA 1999).
From the record presented here, this Court cannot determine that the trial court abused its discretion when it decided that a multiplier should be awarded in this case. Competent, substantial evidence was adduced in support of the trial court’s decision.
II AWARD OF ATTORNEY’S FEES BEFORE FILING OF NOTICE OF APPEAL
Appellant submits that the trial court’s award of attorney’s fees before the filing of the notice of appearance by Mr. Berger was unlawful. Appellant contends that under Fla. R. Jud. Admin. 2.060(k)1, “[t]he additional attorney does, however, need, at the least, a notice of appearance [to be] filed with the court and served on the other parties so that the additional attorney may be properly `of record.‘ ” Pasco County v. Quail Hollow Properties, Inc., 693 So. 2d 82, 84 (Fla. 2d DCA 1997). Appellant argues that Appellee’s appellate counsel was not authorized to work on, or receive fees for work prior to the period before the notice of appearance was filed in the Bellon appeal.
Pasco is instructive concerning the interpretation of Fla. R. Jud. Admin. 2.060(k). An additional attorney will need to file a notice of appearance either “before or contemporaneously with the initial pleading that the additional attorney files.” Id. An additional attorney must file a notice of appearance before or when he or she will “appear” before the court, that is, when the attorney will file some sort of pleading with the court. The Pasco court analogizes the situation to when a foreign attorney wants to practice before a Florida court pro hac vice. In that situation, a motion of permission must be filed before any personal appearance, pleading, paper, or motion is before the court. Id. Appellate counsel for the appellee complied with the Rule of Judicial Administration. The trial court did not err by allowing the award of appellate attorney’s fees for the work done on the Bellon appeal before the appellate counsel filed a notice of appearance.
This Court considers the other arguments of appellant to be without merit.
The trial court’s decision concerning the award of appellate legal fees, in all regards, is AFFIRMED. (MICHAEL A. GENDEN and LEON M. FIRTEL, JJ., concur.)
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1Rule 2.060(k) sets forth:
Addition of Attorneys. After a proceeding has been filed in a court, additional attorneys may appear without securing permission of the court. All additional attorneys so appearing shall file a notice of appearance with the court and shall serve a copy of the notice of appearance on all parties in the proceeding.
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