9 Fla. L. Weekly Supp. 505a

Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Trial court’s finding that chance of success at outset of case was less than even is reasonable in light of evidence that insured’s physicians did not support the chiropractic treatment for which she was denied benefits and the presence of arbitration and standing issues — No abuse of discretion in application of 2.5 multiplier where there was evidence that multiplier was required to obtain competent counsel due to small amount in controversy, that insured’s attorneys could not have mitigated risk of nonpayment, that there was contingency fee agreement, that insured did not have financial resources to pay a reasonable hourly rate, and that insurer eventually paid 100% of disputed bills — Reasonable number of hours — No abuse of discretion in awarding fees to both of insured’s attorneys where trial court considered insurer’s argument that attorneys’ efforts were duplicative and reduced their hours — No merit to insurer’s argument that award of attorney’s fees was contrary to manifest justice of case due to small amount in controversy where insurer failed to show trial court abused its discretion in its award — Appeals — Record — Where parties did not file any transcripts of lower court proceedings, a stipulated statement or a statement of the evidence or proceedings, and parties pointed out deficiency in the record in their briefs but did not move to supplement the record, parties waived compliance with rule 9.200(f) — Post-judgment fees — No error in award of post-judgment attorney’s fees for efforts of attorneys representing insured’s attorneys to enforce judgments awarding attorney’s fees where insurer filed notices of appeal of judgments but failed to post civil supersedeas bonds to stay enforcement — No error in denial of contingency risk multiplier in award of post-judgment attorney’s fees where attorneys were not retained until after final judgments awarding fees were entered, and trial court found likelihood of collection of judgments from solvent insurer to be great — No error in denying insured’s motion to tax post-judgment costs and attorney’s fees of her attorneys based on determination that insured had no interest in attorneys’ efforts to collect attorney’s fees and costs post-judgment — Appellate fees — Insured’s motion for appellate fees for appeals of attorney’s fees judgments denied because issue of entitlement to multiplier goes to amount of fees, not entitlement to the award — As prevailing party on the significant issues, insured is awarded attorney’s fees and costs for appeals of post-judgment attorney’s fees awards

STATE FARM FIRE & CASUALTY COMPANY, Appellant, vs. KELLEY EDGE, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA100-37. (Consolidated: CVA100-38, CVA101-5, CVA101-6, CVA101-17.) L.C. Case No. CO97-11918. Filed June 14, 2002. Appeal from County Court for Orange County, Florida, Jerry L. Brewer, Judge. Counsel: Stephen J. Jacobs, Orlando, for Appellant. Charles R. George, III, and V. Rand Saltsgaver, for Appellee.

(Before CONRAD, WALLER, and THORPE, JJ.)FINAL ORDER AND OPINION

In this consolidated appeal, Appellant/Defendant, State Farm Fire & Casualty Company (“State Farm”), timely appealed the county court’s final judgments, which ordered that Appellee/Plaintiff Kelley Edge (“Edge”), is entitled to attorney’s fees and costs. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument. Fla. R. App. P. 9.320. After consideration of the record on appeal and the parties’ briefs, this Court affirms the trial court’s final judgments.

Factual and Procedural Background

On or about June 9, 1995, Edge was involved in an automobile accident. At the time of the accident, Edge was insured by State Farm and her insurance included personal injury protection (“PIP”). She received treatment for injuries, which allegedly were a result of the accident. By letter dated March 3, 1997, State Farm advised Edge that PIP benefits would not be paid based on an independent medical examination (“IME”) by Dr. Michael G. Keotahlian on February 7, 1997. On November 3, 1997, Edge filed suit wherein she alleged that State Farm improperly failed to pay benefits to her chiropractor, Dr. Esposito, in the amount of $1,567.25, within thirty days of billing.

On November 20, 1999, Edge filed a Motion for Partial Summary Judgment. On January 13, 2000, State Farm notified Edge of its intention to pay the disputed PIP benefits. Subsequently, on January 21, 2000, and February 15, 2000, Edge filed separate motions to tax attorney’s fees and costs pursuant to Chapter 57, § 627.428 and § 627.736(8), Florida Statutes, for her two attorneys, V. Rand Saltsgaver (“Saltsgaver”) and Kevin Weiss (“Weiss”). State Farm filed responses to both motions to tax attorney’s fees and costs, objecting to numerous entries in Attorneys Weiss and Saltsgaver’s affidavits of time and costs expended.

On March 16, 2000, the trial court held a hearing on the issue of costs and attorney’s fees for Attorneys Weiss and Saltsgaver at which both attorneys, their expert witness, and State Farm’s expert witness testified. In its Final Judgment Awarding Attorney’s Fees and Costs to Kevin Weiss, the court found that a reasonable hourly rate was $200.00 and that a reasonable number of hours was 140.7 hours. In its Final Judgment Awarding Attorney’s Fees and Costs to V. Rand Saltsgaver, the court found that a reasonable hourly rate was $275.00 and that a reasonable number of hours was 57 hours. The court also awarded a 2.5 multiplier to both attorneys and pre-judgment interest at 10% from January 13, 2000. The court taxed costs in favor of Edge in the amount of $1,046.45 for Attorney Weiss and $1,000.00 for Attorney Saltsgaver. Finally, the court awarded expert witness fees to Attorney Glenn Klausman in the amount of $300.00 per hour for 9 hours totaling $2,700.00. The lower court arrived at a total to be recovered from State Farm by Attorney Weiss of $71,396.49 and by Attorney Saltsgaver of $42,887.50. On April 10, 2000, the lower court amended the two final judgments to include specific findings of fact related to the application of a multiplier.

On April 17, 2000, State Farm filed its Notices of Appeal of both final judgments rendered March 17, 2000, and both amended final judgments rendered April 17, 2000. (Appellate Case Nos. CVA100-37 and CVA100-38.) State Farm did not post the civil supersedeas bonds for these two appeal cases until May 30, 2000. In late April 2000, Attorney Charles R. George, III, and his law firm, Rush, Marshall, Jones and Kelly, P.A. (“RMJK”), were retained to collect on the original and amended final judgments against State Farm. On May 8, 2000, the trial court entered an order granting Edge’s motion for duplicate writs of execution. On or about June 14, 2000, Edge’s attorneys attempted to execute on the original and amended final judgments at State Farm’s office in Orlando, Florida, and they later confirmed the filing of the supersedeas bonds at the courthouse.

On June 23, 2000, RMJK filed a motion to tax post-judgment costs and fees with affidavits as to his work hours and costs. On July 5, 2000, Attorney Saltsgaver filed a motion to tax post-judgment costs and fees. On July 11, 2000, Attorney Weiss filed a motion to tax post-judgment costs and fees. Each of the motions sought attorney’s fees pursuant to § 627.736(8), § 627.428, and § 57.115, Florida Statutes. State Farm subsequently filed its responses to Edge’s attorneys’ requests for post-judgment attorneys’ fees arguing against their entitlement to said fees and objecting to numerous entries in RMJK, Attorney Weiss, and Attorney Saltsgaver’s affidavits of time and costs expended.

On September 13, 2000, the lower court conducted a hearing on the issue of post-judgment attorneys’ fees and costs. In its December 15, 2000, Final Judgment Awarding Post-Judgment Costs and Attorney’s Fees Due Rush, Marshall, Jones and Kelly, P.A. Pursuant to F.S. 57.115, the court found that a reasonable hourly rate for RMJK was $275.00 and that a reasonable number of hours was 24 hours. The court denied RMJK the application of a multiplier, awarded $126.00 in costs, and awarded 1 hour of an associate attorney’s time at the hourly rate of $175.00. The court arrived at a total to be recovered from State Farm by RMJK of $6,901.00 plus pre-judgment interest of 10% per annum from September 13, 2000. In its February 19, 2001, Final Judgment Denying Plaintiffs’ Motions to Tax Post-Judgment Costs and Attorney’s Fees of V. Rand Saltsgaver and Kevin Weiss Pursuant to F.S. 57.115 And/Or 627.428 And/Or 627.736(8), the lower court determined that Edge “had no interest in attorney V. Rand Saltsgaver and Kevin Weiss’ efforts to collect attorney’s fees and costs post-judgment, . . .” Additionally, after a December 15, 2000, hearing, the trial court entered another final judgment awarding RMJK supplemental post-judgment costs and attorney’s fees pursuant to § 57.115, Florida Statutes, totaling $2,832.50, which included 10.3 hours at a $275.00 hourly rate plus pre-judgment interest from December 15, 2000, at 10% per annum.

On January 16, 2001, State Farm filed its Notices of Appeal and posted civil supersedeas bonds for both final judgments rendered on December 15, 2000, which judgments awarded RMJK post-judgment attorney’s fees and costs. (Appellate Case Nos. CVA101-5 and CVA101-6.) On January 26, 2001, Edge cross-appealed the final judgments awarding post-judgment and supplemental post-judgment costs and attorney’s fees due RMJK rendered December 15, 2000. On March 1, 2001, Edge also appealed the February 19, 2001, final judgment denying Attorneys Weiss and Saltsgaver’s motions to tax post-judgment attorney’s fees and costs. (Appellate Case No. CVA101-17.)

Standard of Review

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 Co. of Maryland, 597 So.2d 248, 250 (Fla. 1992) (court found that “award of attorney’s fees is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of clear abuse of discretion”) (citations omitted); Centex-Rooney Construction Co., Inc. v. Martin County, 725 So. 2d 1255, 1258 (Fla. 4th DCA 1999) (same); Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828, 834 (Fla. 1990). “If reasonable men 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 an abuse of discretion.” First Federal Savings & Loan Association of Palm Beaches v. Bezotte, 740 So. 2d 589, 590 (Fla. 4th DCA 1999), rev. denied, 753 So. 2d 563 (Fla. 2000) (citation omitted).

Final Judgments and Amended Final Judgments Awarding Attorney’s Fees and Costs to V. Rand Saltsgaver and Kevin Weiss

State Farm raises three points of alleged error in the amended final judgments awarding attorney’s fees and costs to Attorneys Saltsgaver and Weiss. First, State Farm argues that the trial court abused its discretion by applying an excessive multiplier of 2.5 to the lodestar amount of attorney’s fees where Edge’s chances of success at the outset of the case were more likely than not, justifying a 1.0 to 1.5 multiplier. Also, State Farm contends that the trial court abused its discretion by awarding attorney’s fees to both Attorneys Saltsgaver and Weiss for their duplicative and/or overlapping efforts. Finally, State Farm contests the award of attorney’s fees as excessive and contrary to the manifest justice of the case where the amount in controversy was approximately $1,500.00. After reviewing the record on appeal, this Court concludes that the lower tribunal did not abuse its discretion.

In ascertaining whether to apply a contingency risk multiplier, the trial court must determine the reasonable hours in the case normally billed to the client multiplied by the prevailing hourly rate attorneys charge in a community. Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). This amount, the lodestar, is then enhanced by a multiplier if the trial court determines that the case meets the criteria for a contingency fee multiplier. Quanstrom, 555 So.2d at 834. Trial courts must consider, “(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 Rowe¹ are applicable. . . .” Id. The court in Quanstrom set the contingency risk multiplier range from 1.0 to 2.5 with guidelines for determining the application of a multiplier as follows:

(1) If the trial court finds that success was more likely than not at the outset, the court may apply a 1.0 to 1.5 multiplier;

(2) If the trial court finds that the likelihood of success was approximately even at the outset, the court may apply a 1.5 to 2.0 multiplier; or

(3) If the trial court finds that success was unlikely at the outset of the case, the court may apply a multiplier of 2.0 to 2.5.

Id. Notably, a trial court’s finding that success at the outset of a case was less than fifty percent does not automatically mandate award of a multiplier. See Travelers Indemnity Co. v. Sotolongo, 513 So. 2d 1384, 1385 (Fla. 3d DCA 1987) (“[A]s we read Rowe, the court is not obligated to adjust the lodestar fee in every case where a successful prosecution of the claim was unlikely. ”) (citation omitted). The main reason for allowing the application of a multiplier to an award of attorney’s fees pursuant to statutory entitlement is to induce attorneys to represent injured parties who otherwise might not be able to avail themselves of competent counsel. Quanstrom, 555 So.2d 828; Rowe, 472 So. 2d 1145.

Regarding State Farm’s first argument that the trial court abused its discretion by applying a multiplier of 2.5, State Farm’s expert witness, Kurt Alexander, testified that Edge had more than a 50-50 chance of winning from the outset since Edge had more than one way to win regarding the various issues she raised in the case. Mr. Alexander stated that if Edge had prevailed on any one issue raised in the case, she would be entitled to her attorney’s fees. Other factors, he believed, favoring Edge at the outset of the case included the perception of State Farm as a callous, unsympathetic defendant cutting off benefits to a woman who claimed her back was injured, her treating chiropractor, Dr. Esposito’s indication that Edge told him the treatment was making her feel better, and a medical record reviewer hired by State Farm, who opined that chiropractic treatment was unnecessary, but who never saw Edge.

On the other hand, the trial court also heard testimony from Edge’s expert witness, Glenn Klausman, Attorney Weiss, and Attorney Saltsgaver. Each testified that this was a difficult case from the outset because Edge was diagnosed with a herniated disc and radicular symptoms; her physiatrist, Dr. Haddock, recommended epidural blocks, not chiropractic care, which she declined to undergo; her treating orthopedist, Dr. Cox, did not support her chiropractic treatment; several medical reports, including an IME by Dr. Gresham, an orthopedist, indicated that there was no benefit to Edge’s continued chiropractic care as she was not getting better and Dr. Gresham even recommended surgery; State Farm continued to vigorously defend this case after it settled another PIP action by Edge against it; State Farm had Edge’s chiropractic bills by Dr. Esposito reviewed numerous times, ultimately relying on an IME by Dr. Keotahlian to deny benefits; another chiropractic IME from Dr. Badzinski opined that chiropractic care was not reasonable, necessary, or related; and Attorney Weiss’ previous law firm, which originally handled this matter, had no interest in continuing to pursue this case and shuffled the case to Attorney Weiss, who was a young lawyer looking for trial experience at the time, to pursue it after he left the law firm to open his own practice. Also, there was an arbitration issue at the outset of the case and a question of assignment and whether Edge had any standing to bring this action, which State Farm did eventually pursue unsuccessfully in its Motion to Dismiss and affirmative defenses to the complaint.

Hence, the trial court’s finding that success at the outset of the case was “less than even” was reasonable given the evidence and the above stated testimony of the expert witnesses regarding the factors present at the outset of the case. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (test for abuse of discretion standard of review is one of reasonableness). More importantly, the trial court heard evidence that a multiplier was required in the Orlando market to obtain competent counsel due to the relatively small amount in controversy, approximately $1,500.00; that Edge’s attorneys could not have mitigated the risk of nonpayment; that there was a continency fee agreement; that Edge did not have the financial resources to pay any kind of reasonable hourly rate; and that State Farm eventually paid 100% of the disputed bills. Thus, this Court finds that the trial court did not abuse its discretion by applying a multiplier of 2.5 to the lodestar amount of attorney’s fees.

State Farm’s next argument is that the trial court abused its discretion by awarding attorney’s fees to both Attorneys Saltsgaver and Weiss for their duplicative and/or overlapping efforts. This Court finds nothing in the record below that indicates an abuse of discretion by the trial court. See Centex-Rooney, 725 So. 2d at 1259 (“Where a party engages in separate counsel to represent it on various aspects of an action, attorney’s fees to each counsel are not precluded provided that the services rendered are necessary, not duplicative, and the total fee is reasonable.”) (citations omitted). The lower tribunal heard testimony from Edge’s expert witness, Mr. Klausman, that after reducing Edge’s attorneys’ timesheets for duplicative efforts by approximately 11 hours, reasonable compensation for Attorney Saltsgaver would be 74 hours and 157.7 hours for Attorney Weiss. It also heard testimony from State Farm’s expert witness, Mr. Alexander, who opined that 37-40 hours was reasonable for Attorney Saltsgaver and 61-65 hours was reasonable for Attorney Weiss. The trial court eventually awarded Attorney Saltsgaver 57 hours and Attorney Weiss 140.7 hours. It is apparent that the trial court considered and gave merit to State Farm’s argument when it reduced the amount of time requested by Attorneys Saltsgaver and Weiss. Thus, the trial court’s determination of attorney’s fees is presumed to be correct and an appellate court should not substitute its judgment for that of the trial court. Centex-Rooney Contruction Co., Inc., 725 So. 2d at 1258.

This Court finds no merit to State Farm’s final argument that the award of attorney’s fees was contrary to the manifest justice of the case in which the amount in controversy was approximately $1,500.00 where State Farm failed to show that the trial court abused its discretion in its award of attorney’s fees. Accordingly, the trial court’s judgments should not be disturbed.

Two Final Judgments Awarding Post-Judgment Attorney’s Fees and Costs to RMJK filed December 15, 2000, after hearing on September 13, 2000, and Final Judgment Denying Plaintiffs’ Motions to Tax Post-Judgment Costs and Attorney’s Fees of V. Rand Saltsgaver and Kevin Weiss filed February 19, 2001, after hearing on September 13, 2000

State Farm next appeals the trial court’s December 15, 2000, awards of post-judgment attorney’s fees to RMJK pursuant to § 57.115², Florida Statutes, for $6,901.00, which includes $6,775.00 in attorney’s fees and $126.00 in costs, and for $2,832.50. Edge cross-appeals both judgments. In addition, Edge appeals the trial court’s February 19, 2001, Final Judgment Denying Plaintiffs’ Motions to Tax Post-Judgment Costs and Attorney’s Fees of V. Rand Saltsgaver and Kevin Weiss Pursuant to F.S. 57.115 and/or 627.428 and/or 627.736(8). These judgments were filed subsequent to lower court proceedings on September 13, 2000 and December 15, 2000.

As a preliminary matter, this Court notes that the parties did not file any transcripts of the lower court proceedings at issue, a stipulated statement pursuant to Florida Rule of Appellate Procedure 9.200(a)(4), or a statement of the evidence or proceedings pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Thus, as to all issues raised by both parties regarding the judgments rendered as a result of the September 13, 2000, and December 15, 2000 hearings, this Court finds that both parties waived compliance with Florida Rule of Appellate Procedure 9.200(f)³ where the transcripts were not contained in the record⁴, where Edge specifically pointed out in her brief that the appellate record was incomplete for proper review of the issues raised by State Farm, and where State Farm countered that this Court should be able to address the issues raised in this appeal based on the pleadings alone. See Cirillo v. Davis, 732 So. 2d 387, 389 (Fla. 4th DCA) (“Where, as here, the appellees point out the deficiency in the record in their brief and appellants do not move to supplement the record, this court takes the position that compliance with rule 9.200(f)(2) has been waived.”), rev. denied, 751 So. 2d 50 (Fla. 1999). See also Estrada v. Unemployment Appeals Commission, 693 So. 2d 1091 (Fla. 5th DCA 1997) (claimant waived opportunity to supplement record with transcript of hearing pursuant to 9.200(f) where notified by UAC that he must request transcript within 10 days of appeal and he failed to request it). Therefore, in the absence of such a record, this Court must presume that there was sufficient evidence and testimony presented to the trial court to support its findings of fact, and this Court’s consideration is limited to any fundamental error which appears on the face of the judgments. See Hirsh v. Hirsh, 642 So. 2d 20, 21 (Fla. 5th DC A 1994) (in absence of transcript, appellate court must presume lower court’s findings correct, but authorized to reverse judgment where error of law apparent on face of judgment); Hudson Pest Control, Inc. v. Westford Asset Management, Inc., 622 So. 2d 546, 547 (Fla. 5th DCA 1993) (where no transcript presented on appeal, case will only be reversed if trial judge erred as matter of law).

A. Final Judgments Awarding Post-Judgment Attorney’s Fees and Costs to RMJK

State Farm asserts that the trial court had no basis to award any post-judgment fees and costs to RMJK where it filed timely, valid Notices of Appeal of the judgments and therefore, RMJK’s collection efforts were unnecessary under § 57.115, Florida Statutes. Edge counters that the trial court properly awarded such fees and costs pursuant to § 57.115(2)(a), Florida Statutes, where State Farm avoided and evaded payment of Attorney Weiss and Saltsgaver’s fees awarded on March 17, 2000, and April 10, 2000. Edge cross-appeals both judgments, asserting that the trial court improperly failed to apply a 2.5 continency risk multiplier. This Court finds no error of law to support the lower court’s reversal of these judgments.

In order for a party to effectuate an automatic stay of a “judgment solely for the payment of money” pending appellate review, the party must post “a good and sufficient bond.” Fla. R. App. P. 9.310(b)(1). In Fitzgerald v. Addison, 287 So. 2d 151 (Fla. 2d DCA 1973), the court held that a party may appeal a money judgment without posting a supersedeas bond, but that the judgment holder has the concomitant right to seek execution upon the judgment. See also Palm Beach Heights Development and Sales Corp. v. Decillis, 385 So. 2d 1170 (Fla. 3d DCA 1980) (party may appeal a money judgment without posting supersedeas bond, but other party has right to seek execution upon judgment). Thus, it is clear that the filing of a notice of appeal of a money judgment does not by itself stay the execution.

Here, State Farm filed timely, valid notices of appeal of the judgments awarding attorney’s fees and costs to Attorneys Saltsgaver and Weiss on April 17, 2000. State Farm, however, failed to post the civil supersedeas bonds for these appeals to stay enforcement of them until May 30, 2000. Subsequent to the trial court’s entry of the judgments, RMJK was retained to collect on the judgments against State Farm. Writs of execution were issued on April 28, 2000, and the trial court ordered the issuance of duplicate writs of execution on May 8, 2000, for State Farm’s property located in another county. Had State Farm wanted to avoid the efforts made by Edge’s attorneys to carry into effect the judgments of the court, it could have posted civil supersedeas bonds at the time of its filing of the notices of appeal. Its decision not to obtain and file the bonds until May 30, 2000, left it subject to enforcement efforts by Edge’s attorneys and the trial court could have properly determined that such efforts should be compensated. See § 57.115(2)(b), Florida Statutes; Fitzgerald, 287 So. 2d 151. Therefore, based on the record before us and finding no fundamental error of law, this Court shall not disturb the trial court’s award of post-judgment attorney’s fees to RMJK pursuant to the provisions outlined in § 57.115, Florida Statutes.

We next address Edge’s cross-appeal of the judgments in which she asserts that the trial court abused its discretion in failing to apply a 2.5 continency risk multiplier to the award of RMJK’s post-judgment attorney’s fees. Relying on Stack v. Lewis, 641 So. 2d 969 (Fla. 1st DCA 1994), Edge argues that since the multiplier is established at the outset of the case, the trial court misapplied the law in failing to utilize the same multiplier of 2.5, which was established in the final judgments and amended final judgments in favor of Attorneys Weiss and Saltsgaver, to RMJK’s post-judgment attorney’s fees. However, Stack, in which the court held that application of a multiplier to appellate attorney’s fees was proper based upon the likelihood of success at the beginning of the case at the trial court level, is factually distinguishable from the instant case wherein the attorneys in Stack were employed by the appellee from the beginning of the case through appeal and RMJK was not retained by Edge until after the final judgments awarding attorney’s fees to Attorneys Weiss and Saltsgaver were entered, which was almost 2½ years from the filing of this action. Id. RMJK is not entitled to application of a multiplier simply because Attorneys Weiss and Saltsgaver were awarded one. It is clear from the final judgments awarding post-judgment attorney’s fees to RMJK⁵ that the lower court considered the availability of a multiplier and its applicability to RMJK under the circumstances when it specifically found that, “[I]t believes Defendant to be solvent and the likelihood of the collection of any judgment against this Defendant to be great and, therefore, a multiplier is not applicable.” This Court must assume the lower court correctly decided the factual issues. See Crusaw v. Crusaw, 637 So. 2d 949 (Fla. 1st DCA 1994) (factual findings of trial court presumed correct in absence of trial transcript or stipulated statement); Beasley v. Beasley, 463 So. 2d 1248 (Fla. 5th DCA 1985) (court affirmed appeal of attorney’s fees, finding that financial affidavits, without transcript of testimony or stipulated statement, insufficient for appellate review). Accordingly, this Court finds no error of law on the face of the judgments and will not disturb the trial court’s denial of the application of a multiplier to RMJK’s award of post-judgment attorney’s fees.

B. Final Judgment Denying Plaintiffs’ Motions to Tax Post-Judgment Costs and Attorney’s Fees of V. Rand Saltsgaver and Kevin Weiss

Edge appeals the trial court’s February 19, 2001, Final Judgment Denying Plaintiffs’ Motions to Tax Post-Judgment Costs and Attorney’s Fees of V. Rand Saltsgaver and Kevin Weiss Pursuant to F.S. 57.115 and/or 627.428 and/or 627.736(8). Specifically, Edge challenges the lower court’s finding that Edge had “no interest” in Attorneys Weiss and Saltsgaver’s efforts to collect attorney’s fees and costs post-judgment and denied their motions for such fees and costs. State Farm counters that the trial court denied such post-judgment fees and costs to Attorneys Weiss and Saltsgaver because the court determined that Attorneys Weiss and Saltsgaver, not Edge, hired RMJK to represent them as their attorney in their efforts to execute the final judgments and therefore, they were not entitled to such post-judgment attorney’s fees. This Court has no choice but to affirm the trial court’s evidentiary decisions regarding the issue raised by Edge here as a review of the record reveals no error of law to support the lower court’s reversal. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (decision of a trial court presumed correct where record insufficient to resolve underlying factual issues to demonstrate reversible error); Olsen v. Mason, 682 So. 2d 1240 (Fla. 5th DCA 1996) (court affirmed where appellants challenged findings of fact made by trial court, yet failed to provide appellate court with either a transcript of the proceedings or a settlement agreement approved by the trial court pursuant to Florida Rule of Appellate Procedure 9.200); Crusaw, 637 So. 2d 949.

Appellate Costs and Attorney’s Fees

On June 19, 2000, Attorney Saltsgaver moved for an award of appellate attorney’s fees and costs on behalf of Edge for his involvement in Appellate Case Nos. CVA100-37 and CVA100-38, which involved State Farm’s appeal of the amount of the attorney’s fees awards to Attorneys Weiss and Saltsgaver and the application of a multiplier. Because the issue of entitlement to a multiplier goes to the amount of the attorney’s fees, not entitlement to that award, Attorney Saltsgaver’s motion for attorney’s fees shall be denied. See State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993) (insurer who loses suit to insured but contests insured’s entitlement to attorney’s fees may be held liable for attorney’s fees incurred in litigating the issue of entitlement to fees, but not for time spent litigating the amount of those fees). Attorney Saltsgaver’s second motion for attorney’s fees pursuant to § 57.105, Florida Statutes, filed October 25, 2000, shall also be denied.

On June 15, 2001, RMJK filed a Motion for Appellate Attorney’s Fees on behalf of Edge for its involvement in Appellate Case Nos. CVA101-5, CVA101-6, and CVA101-17. RMJK’s motion shall be granted because Edge is the prevailing party on the significant issues of this litigation and finding no reason that costs should not be taxed, this Court concludes that Edge is entitled to have costs taxed in her favor, if she timely files a motion with the lower tribunal within thirty days of the issuance of the mandate in this matter. Fla. R. App. P. 9.400(a). RMJK on behalf of Edge is also entitled to its attorney’s fees incurred in litigating the issue of entitlement to fees in Appellate Case Nos. CVA101-5, CVA101-6, and CVA101-17. See Palma, 629 So. 2d 830.

THEREFORE, it is hereby ORDERED and ADJUDGED:

1) The trial court’s final judgments at issue in this consolidated appeal are AFFIRMED.

2) RMJK’s June 15, 2001, Motion for Appellate Attorney’s Fees on behalf of Appellee, Kelley Edge, is GRANTED as to Appellate Case Nos. CVA101-5, CVA101-6, and CVA101-17, and this matter is REMANDED to the trial court to assess the amount of attorney’s fees to which Appellee is entitled.

3) Attorney Saltsgaver’s motion for attorney’s fees filed June 19, 2000, is DENIED.

4) Attorney Saltsgaver’s second motion for attorney’s fees pursuant to § 57.105, Florida Statutes, filed October 25, 2000, is also DENIED.

5) The Clerk of this Court is directed to place this Order in the court file for appellate case number CVA100-37 and to file certified copies of this Order in the court files for CVA100-38, CVA101-5, CVA101-6, and CVA101-17.

__________________

¹The factors the court must consider to determine whether or not a multiplier is necessary include:

(1) the time and labor required, the novelty of the question involved, and the skill required 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 services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by circumstances;

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

(7) the experience, reputation, and ability of the lawyer(s) performing the services; and

(8) whether the fee is fixed or contingent.

Rowe, 472 So. 2d at 1150.

²§ 57.115, Florida Statutes (2000), provides as follows:

(1) The court may award against a judgment debtor reasonable costs and attorney’s fees incurred thereafter by a judgment creditor in connection with execution on a judgment.

(2) In determining the amount of costs, including attorney’s fees, if any, to be awarded under this section, the court shall consider:

(a) Whether the judgment debtor had attempted to avoid or evade the payment of the judgment; and

(b) Other factors as may be appropriate in determining the value of the services provided or the necessity for incurring costs in connection with the execution.

³Rule 9.200(f)(2) provides as follows:

If the court finds the record incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined, because of an incomplete record, until an opportunity to supplement the record has been given.

Fla. R. App. P. 9.200(f)(2).

⁴In its Reply Brief, State Farm advised that the September 13, 2000, hearing was recorded by a court reporter, but neither party has requested that it be transcribed to date. State Farm also stated that there is no record of the December 15, 2000, hearing as no court reporter was present, but that the trial court based its decision on findings of fact and law made at the September 13, 2000, hearing.

⁵All findings set forth by the trial court in the first final judgment awarding post-judgment attorney’s fees and costs to RMJK were incorporated in the final judgment awarding supplemental post-judgment attorney’s fees and costs.

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