Fashion Tile & Marble, Inc. v. Alpha One Const. & Associates, Inc.

• Decision Date: 26 October 1988
• Docket Number: No. 88-636,88-636
• Citation: 13 Fla. L. Weekly 2419,532 So.2d 1306
• Parties: 13 Fla. L. Weekly 2419 FASHION TILE & MARBLE, INC., Appellant, v. ALPHA ONE CONSTRUCTION & ASSOCIATES, INC., Gerken & Company, Inc., and W.B. Johnson Properties, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1306

532 So.2d 1306

13 Fla. L. Weekly 2419

FASHION TILE & MARBLE, INC., Appellant, v. ALPHA ONE CONSTRUCTION & ASSOCIATES, INC., Gerken & Company, Inc., and W.B. Johnson Properties, Inc., Appellees.

No. 88-636.

District Court of Appeal of Florida,

Second District.

Oct. 26, 1988.

Raymond L. Bass of Miller, Bass & Chernoff, Naples, for appellant.

James H. Siesky of Siesky and Lehman, P.A., Naples, for appellees.

SCHOONOVER, Judge.

The appellant, Fashion Tile & Marble, Inc., challenges an attorney's fee award it received pursuant to section 713.29, Florida Statutes (1985), as the prevailing party in a mechanic's lien action. We find that although the trial court had discretion to consider the "results obtained" by the appellant in determining a reasonable attorney's fee, it erred by limiting the fee to a percentage of the amount of damages recovered. We, accordingly, reverse and remand for the determination of an appropriate fee.

The appellant, a subcontractor, entered into an oral agreement with a joint venture, comprised of appellees Alpha One Construction & Associates, Inc. and Gerken & Company, Inc. (Alpha One), for the performance of certain work on the Ritz Carlton Hotel in Collier County, Florida. When the parties could not agree on the amount owed the appellant, the appellant recorded a mechanic's lien in the amount of $43,987.32. Alpha One then filed an action against the appellant alleging that the mechanic's lien was fraudulent. The appellant counterclaimed seeking to foreclose its lien. The counterclaim added additional parties and also alleged causes of action for fraud and quantum meruit.

After the close of all the evidence in the parties' jury trial, the trial court directed a verdict against Alpha One on its fraudulent lien claim and against the appellant on its fraud claim. The matter was submitted to the jury on the appellant's mechanic's lien and quantum merit claims. The jury returned a general verdict in favor of the appellant in the amount of $15,876.57.

The trial court then entered a judgment for the appellant and reserved jurisdiction to consider an attorney's fee award. After an evidentiary hearing, the trial court entered a supplemental judgment which, in pertinent part, provided:

THE COURT FINDS that the number of hours reasonable [sic] expended by counter-plaintiff's attorney on the litigation is 126 hours. The court further finds the reasonable hourly rate for said attorney in this case is $125.00 per hour.

COUNTER-PLAINTIFF sought recovery of $43,987.32 on its claim of lien. The jury entered a verdict for counter-plaintiff in the amount of $15,876.57. Based upon the results obtained, the court finds that a reasonable attorney's fee for counter-plaintiff shall be set at $7,500.00.

At the conclusion of a hearing on the appellant's subsequent motion for rehearing, the trial court denied the motion and stated that it was awarding fifty per cent of the amount recovered and that the amount of attorney's fees requested was "more than what the case was worth." This timely appeal followed.

We agree with the appellant's contention that it was entitled to a reasonable attorney's fee as the prevailing party in a mechanic's lien action and that the trial court erred in determining the amount of that fee. In Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), our supreme court adopted the federal lodestar approach for computing reasonable attorney's fees. This approach requires the trial court to determine a "lodestar figure" by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party's attorney. Thereafter, the trial court may add to or subtract from that figure based upon a "contingency risk factor" and the "results obtained."

In this case, we find ample evidence in the record to support the trial court's determination of the number of hours reasonably expended by the appellant's attorney on the litigation and the reasonable hourly rate for those services. The trial court was, therefore, presented with sufficient evidence to support a determination of a $15,750 lodestar. Since the appellant did not employ his attorney on a contingency fee basis, the trial court also properly declined to adjust the lodestar based upon the contingency risk factor. The record, however, does not support a fifty per cent reduction on the basis of the "results obtained." We, therefore, find that the trial court abused its discretion by reducing the lodestar.

To the extent that the trial court's ruling reducing the lodestar can be interpreted as an attempt to reduce the attorney's fee award because the appellant did not prevail on all of its claims, the trial court failed to make the necessary findings to allow appellate review. The results obtained factor may provide an...