Pazmino v. Gonzalez

• Decision Date: 27 March 2019
• Docket Number: No. 3D17-2575,3D17-2575
• Citation: 273 So.3d 1056
• Parties: Rene PAZMINO and Grace Pazmino, Appellants, v. Lidia GONZALEZ, Appellee.
• Court: Florida District Court of Appeals

273 So.3d 1056

Rene PAZMINO and Grace Pazmino, Appellants,

v.Lidia GONZALEZ, Appellee.

No. 3D17-2575

District Court of Appeal of Florida, Third District.

Opinion filed March 27, 2019

Rehearing Denied May 08, 2019

Navarro | McKown and Luis F. Navarro, Coral Gables, for appellants.

Quesada Valdes, PLLC, and G. Frank Quesada, Coral Gables, for appellee.

Before SALTER, SCALES and MILLER, JJ.

SALTER, J.

Rene and Grace Pazmino ("the Pazminos") appeal a final order on the motion of Lidia Gonzalez ("Gonzalez") for attorneys' fees. We affirm. We address the issues raised by the Pazminos and, in particular, the propriety of the lodestar multiplier, 2.0, applied by the trial court.

Facts and Background

The underlying circuit court case and a related case arose out of a 2007 real estate and lending transaction whereby Gonzalez was deceived into borrowing and paying $ 230,000.00 for a residence that the sellers (non-parties Oakley and Rosie Walker) understood they were selling for only $ 150,000.00 and in order to mitigate losses in a foreclosure. In a final judgment entered in 2014 after a non-jury trial, the circuit court held that appellant Rene Pazmino and his daughter, Grace Pazmino, along with Rene Pazmino's ex-wife (Ana Cummings, who also acted under an alias of "Maritza Ayala"), committed fraud during the sale of the property to Gonzalez, violated the Florida Deceptive and Unfair Trade Practices Act, sections 501.201 – 501.213, Florida Statutes (2007) ("FDUTPA"), and engaged in other unlawful conduct in the transactions.

In that final judgment, for example, the trial court found that the loan sought to be enforced by Cummings/Ayala violated Florida's criminal usury statute, and that "$ 83,000.00 of the $ 230,000.00 that Gonzalez was supposedly paying for the property was diverted to Cummings' daughter, Grace Pazmino, and her ex-husband, Rene Pazmino." The trial court also found that the Pazminos, neither of whom was a licensed real estate broker or realtor, engaged in "prohibited practices" as defined in section 494.0025, Florida Statutes (2007), including the receipt of so-called "finder's fees" and the Pazminos' commission of "fraudulent actions."

Because the trial court's rulings in 2014 declared the mortgage to Cummings/Ayala null and void, Gonzalez's damages against each of the Pazminos and Cummings/Ayala, jointly and severally, was limited to $ 16,742.53,¹ "as well as attorneys' fees and costs." The trial court reserved jurisdiction to determine the amount of attorneys' fees to be awarded Gonzalez. This Court affirmed that final judgment in 2015. Cummings v. Gonzalez, 206 So.3d 52 (Table) (Fla. 3d DCA 2015).

Gonzalez then moved to fix the amount of the attorneys' fees to be awarded to her as against the Pazminos and their mortgage company.² The trial court conducted an evidentiary hearing, heard the testimony of Gonzalez's attorneys and their expert witness on fees, and reviewed the record. In a detailed, 15-page final order, the trial court addressed the burden of proof, the sufficiency of the time records and expert testimony, and the applicable case law regarding a contingency risk multiplier.

The trial court found that Gonzalez and her attorneys had complied with her standing order for attorneys' fee hearings, regarding the pre-hearing disclosure of time records, invoices, supporting documentation, retainer agreement, and expert affidavit on fees, while:

Neither Cummings nor the Pazminos have ever filed any objections to the hours, the hourly rates or the court costs sought by Gonzalez. Cummings and Pazminos only filed an unfounded claim that Gonzalez had not proven entitlement to trial and attorney's fees, which this Court dismissed.

Following the evidentiary hearing, the trial court found that Gonzalez's attorneys were employed on a contingency basis, "which was necessary in order for Gonzalez to obtain competent counsel, specifically counsel who was unable to mitigate the risk of non-payment, since the client was a domestic service employee with no assets." The court accepted some, but not all of the hours submitted by the attorneys, reducing the claims by over $ 50,000.00. The court considered the appropriateness of a contingent risk multiplier for Gonzalez's trial counsel³ under Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), and the lodestar factors detailed in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), codified in Rules Regulating The Florida Bar 4-1.5(b).

The final order under review awarded $ 13,356.00 in appellate attorneys' fees, trial court attorneys' fees of $ 213,548.00 ($ 106,774.00 as a lodestar, with a 2.0 multiplier), and additional amounts for costs and prejudgment interest from the date of entitlement, as against each of the Pazminos and their Pezaya Mortgage Corporation, jointly and severally. This appeal followed.

Analysis

The standard of review for the trial court's evidentiary findings regarding the attorneys' fee award is for competent, substantial evidence. The trial court's determination to apply a multiplier to the lodestar amount is reviewed for an abuse of discretion. See Citizens Prop. Ins. Corp. v. Laguerre, 259 So.3d 169, 173 (Fla. 3d DCA 2018) ; TRG Columbus Dev. Venture, Ltd. v. Sifontes, 163 So.3d 548, 552 (Fla. 3d DCA 2015).

On appeal, the Pazminos raise two issues. First, they contend the award of fees was pursuant to the FDUTPA fee-shifting provision, section 501.2105(3), citing Schick v. Department of Agriculture & Consumer Services, 599 So.2d 641, 643 (Fla. 1992), and the more recent case of Sanchez v AN Luxury Imports of Pembroke Pines, Inc., 216 So.3d 723, 730 (Fla. 4th DCA 2017). We are unpersuaded by that argument, because the final...