448 So. 2d 638 | Fla. Dist. Ct. App. | 1984
Lead Opinion
R.J. Pavlik appeals from an order awarding him attorney’s fees pursuant to
The trial court felt constrained to limit Mr. Pavlik’s attorney’s fee award to his actual expense because of several cases cited by the plaintiff/appellee. Among those cases was Trustees of Cameron-Brown Investment Group v. Tavormina, 385 So.2d 728 (Fla. 3d DCA 1980), where the Third District held that lenders in a foreclosure action were only entitled to recover attorney’s fees in the amount they actually paid, despite a provision in the contract between the parties under which the debtor agreed to pay “all costs of collection, including a reasonable attorney’s fee.” In Cameron-Brown, the actual attorney's fee was less than $25,000, while expert testimony at trial suggested that a reasonable fee might exceed $100,000. We do not find Cameron-Brown controlling here, however, since the holding in that decision was confined to cases involving enforcement of contractual provisions authorizing recovery of reasonable attorney’s fees. The court expressly exempted from its consideration “the awarding of fees by statutory authority which embodies public policy considerations not pertinent hereto.” 385 So.2d at 731.
Where the legislature has mandated a reasonable attorney’s fee to promote a public policy, a fee arrangement between a party and his counsel should not be binding on the trial court in its determination of what constitutes a reasonable fee. Indeed, the Supreme Court announced this view in Bosem v. Bosem, 279 So.2d 863 (Fla.1973), a case involving an award of attorney’s fees in a dissolution action. There, the court held that the wife’s attorney was statutorily entitled to recovery of a reasonable attorney’s fee from the husband, even though the amount exceeded the sum due under the agreement with her attorney.
In the case at bar, Mr. Pavlik presented expert testimony indicating that a reasonable fee for services rendered by his attorney was about twice the amount due under his agreement with counsel. Since we have concluded that Bosem governs by analogy, we hold that an evaluation of “reasonable” attorney’s fees under section 713.29, Florida Statutes (1983), must not be determined solely by the terms of the fee arrangement between a party and his counsel. Rather, the trial court must take into account the factors set forth in the Florida Code of Professional Responsibility, DR 2-106.
Accordingly, we reverse the order and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
. Section 713.29, Florida Statutes (1983), provides:
Attorney’s fees. — In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.
. DR 2-106(B) provides:
(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite 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 legal services.
*640 (4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
Concurrence Opinion
concurring specialty-
I concur with Judge Hurley's conclusion for a number of other reasons in addition to some that he has suggested. In doing so, I am more aware than ever — having been given the golden opportunity by Dean Ovid Lewis of Nova Law Center to teach upper class students (and myself), for a semester, a course in Remedies — that all of judging is an expression of value judgments. At the appellate level, those judgments — in many 5-4 or 2-1 situations — after getting a seal of majority approval, enter into the orbit of judicial precedent.
I find it is equally true that we judges do not give enough attention to the theories of the law that appear in the Restatements and in the various law reviews but often accept precedent as gospel because it is convenient to do so. Cardozos, like unicorns, are rare animals; and we who ar.e caught up in the trappings of our office often easily drift with the past without consideration of the “why’s.”
I have urged my students to call to the attention of the trial judges before whom they will appear the expressions of creative legal thinkers who are holding forth in the classroom and other resource centers such as the American Law Institute, to stimulate our colleagues’ on the trial bench consideration of significant ideas that are floating around out there unseen or unheard as cannons going off in the desert.
As for the business at hand, the same panel that considered the present case also decided Thomas v. Thomas, 418 So.2d 316, 317-18 (Fla. 4th DCA 1982), which said:
Appellee made an agreement with her attorney that he would receive compensation at the rate of $100 per hour. The affidavit for attorney’s fees her lawyer submitted reflects the' lawyer spent 28.40 hours in rendering legal assistance; his associate, whose time was billed at $75 per hour, expended 6.10 hours. As part of the agreement, appellee paid her attorney a $500 retainer fee. Relying upon the terms of this contract, we hold the total award of attorney’s fees should not have exceeded $3,297.50. On remand the trial court is directed to reduce it accordingly.
It is safe to say that some of the present panel were shocked to hear at oral argument that the foregoing language was being used by some of the trial bench as a proscription — in every case — against the award of a larger fee than that which the spouse had agreed to pay. While it is impossible to reconstruct everything that may have been considered in the formulation of an opinion written almost two years
Second, I am as concerned with mechanic’s lien claimants’ access to the courts as I am for a financially troubled spouse whose husband, the breadwinner, has taken a walk. A short-changed claimant and a financially desperate spouse are often in the same position because the party holding the purse strings removes the purse. It follows that in both situations, the ideal is for the client and lawyer to draft an agreement that provides for a reasonable hourly rate, with the understanding that the Code of Professional Responsibility may justify collection of more from the adversary. However, the client may be able to execute only an agreement which specifies less than a reasonable sum per hour because of the client’s desperate financial condition in the presence of personal principles that demand the client agree only to a fee within his or her expected financial means.
Third, the present ease represents a claimant and a property owner both being left high and dry by a third party. The owner, in the mind of the lawyer, should be billed for only $6,500 although the lawyer had 175 hours invested in his successful defense of the claim. Moreover, not only-was there a disparity between the number of hours required by the genuine problem in this case and the bill in question, the fee of $6,500 is, in my opinion, unreasonable in light of the result achieved because of a lot of creative attention and strategy in dealing with a difficult situation. As I have discussed with my students, the study of remedies is the study of accountability — or in this case, entitlement — both of which sound in fairness.
