Third District Court of Appeal

State of Florida 

Opinion filed March 2, 2022.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D20-1806 & 3D21-323

Lower Tribunal No. 17-26269

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Impex Caribe Corp.,

Appellant,

vs.

Carl Levin, P.A., etc., et al.,

Appellees.

Appeals from the Circuit Court for Miami-Dade County, Abby 

Cynamon, Judge.

Law Offices of Paul Morris, P.A., and Paul Morris; Irv J. Lamel, for 

appellant.

Riesberglaw, and Barbara J. Riesberg; Kula & Associates, P.A., and 

Elliot B. Kula, W. Aaron Daniel and William D. Mueller, for appellees.

Before FERNANDEZ, C.J., and SCALES and GORDO, JJ. 

SCALES, J.
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Impex Caribe Corporation (“Impex”), the defendant/counter-plaintiff 

below, appeals a November 5, 2020 post-judgment order (“fees order”) 

awarding prevailing party attorney’s fees to plaintiffs/counter-defendants 

below, Carl Levin, P.A. d/b/a CLA-D and Carl Levin (together “Levin”). The

trial court entered the fees order after having entered a September 26, 2020

final judgment in favor of Levin on Levin’s claim to foreclose a lien for 

architectural services.1 The fees order awarded Levin $142,187.50 in

attorney’s fees (i.e., the lodestar amount),

2 increased by a contingency fee 

multiplier of two, for a total of $284,375, plus $3,006.31 in costs. Finding the 

trial court did not abuse its discretion in determining the lodestar amount, we

affirm that portion of the fees order without discussion. We reverse that 

1 In appellate case number 3D21-323, Impex appealed the fees order. In 

appellate case number 3D20-1806, Impex appealed the September 26, 2019 

final judgment. This Court consolidated the appeals for all purposes.

Because Impex’s briefing in this Court makes no argument with respect to

the September 26, 2019 final judgment, we affirm the final judgment without 

discussion.

2 To determine the amount of attorney’s fees to be awarded to a prevailing 

party, the trial court must use the lodestar approach set forth in Florida 

Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). The 

trial court arrives at the lodestar amount by multiplying the number of 

reasonable hours expended by a reasonable hourly rate. Id. at 1150-51. This 

Court reviews the trial court’s lodestar determination for an abuse of 

discretion. See TRG Columbus Dev. Venture, Ltd. v. Sifontes, 163 So. 3d 

548, 552 (Fla. 3d DCA 2015).
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portion of the fees order applying a contingency fee multiplier, however,

because it is not supported by competent, substantial evidence. See

Universal Prop. & Cas. Ins. Co. v. Deshpande, 314 So. 3d 416, 420 (Fla. 3d 

DCA 2020) (“While the trial court’s determination to apply a multiplier to the 

lodestar amount is reviewed for an abuse of discretion, the trial court’s 

findings as to the multiplier must be supported by competent, substantial 

evidence.”).

In Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828, 

834 (Fla. 1990), the Florida Supreme Court set forth three factors the trial 

court must consider in determining whether to apply a contingency fee 

multiplier: “(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 Rowe are applicable, especially, the amount involved, the 

results obtained, and the type of fee arrangement between the attorney and 

his client.” We focus our inquiry on the trial court’s findings regarding the first 

factor – the relevant market factor – as that inquiry is outcome determinative 

in this appeal.

With respect to the relevant market factor, the trial court made the 

following factual findings in its fees order:
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18. . . . As to the first [Quanstrom] prong, [Levin’s fees expert] . 

. . opined that the multiplier was necessary in order for plaintiff to 

obtain competent counsel, as one of several attorneys who 

represented Defendant in this action was board certified in 

construction law, thus leading to the conclusion that “competent” 

counsel would not include every attorney in Miami-Dade County 

practicing in the area of construction law.

19. [Levin’s fees expert] additionally testified that the relevant 

market required a contingency fee multiplier to obtain competent 

counsel, as Plaintiff could not afford to pursue the claims if he 

had to pay hourly rates to do so. Under the fee agreement, 

Plaintiffs’ counsel would not be paid any fees in the event there 

was no fee award to Plaintiffs. . . . 

(Emphasis added). While two of these specific factual findings – i.e., that 

not every attorney in Miami-Dade County is board certified in construction 

law and that Levin could not afford to pay hourly rates – are supported by 

the record, we could find no record support for the trial court’s conclusion 

that the relevant market required a contingency fee multiplier to obtain 

competent counsel.

The purpose of the relevant market factor is “to assess, not just 

whether there are attorneys in any given area, but specifically whether there 

are attorneys in the relevant market who both have the skills to handle the 

case effectively and who would have taken the case absent the availability 

of a contingency fee multiplier.” Joyce v. Federated Nat’l Ins. Co., 228 So. 

3d 1122, 1135 (Fla. 2017). Thus, the party seeking prevailing party attorney’s 

fees must establish “that a party would have difficulty securing counsel 
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without the opportunity for a multiplier.” Citizens Prop. Ins. Corp. v. Laguerre, 

259 So. 3d 169, 177 (Fla. 3d DCA 2018) (quoting Massie v. Progressive 

Express Inv. Co., 25 So. 3d 584, 585 (Fla. 1st DCA 2009)).

Here, Levin’s fees expert testified that Levin could not afford to pay an 

attorney on an hourly basis and that Impex’s representation by a boardcertified construction lawyer necessitated that Levin also have a wellqualified construction lawyer. Levin’s fees expert, however, never testified 

that there was a lack of well-qualified, local construction lawyers, or that it 

was unlikely that Levin would have found a competent lawyer to take his lien 

foreclosure case without the possibility of a contingency fee multiplier. See

Joyce, 228 So. 3d at 1134-35.3 Quite the contrary, on cross-examination, 

Levin’s fees expert conceded that he was completely unaware of the number 

of construction lawyers and board-certified construction lawyers practicing in 

Miami-Dade County.

The instant case is akin to Desphande, where, under similar 

circumstances, this Court reversed application of a contingency fee 

multiplier:

In support of the multiplier, the court heard testimony 

regarding Deshpande’s counsel’s expertise in first-party property 

insurance litigation, that the case was accepted on a contingency 

3 Levin’s fees expert did not testify as to the qualifications of Levin’s trial 

counsel.
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basis and that counsel would have been unable to mitigate 

against the risk of nonpayment. There was also testimony that 

Deshpande’s counsel obtained a favorable result. The record, 

however, contains no evidence that Deshpande could not have 

obtained other competent counsel in this market absent the 

availability of a contingency fee multiplier. The Plaintiff’s fee 

expert failed to testify that Deshpande’s counsel was the only 

competent counsel in the relevant market. Nor did the expert 

alternatively testify that, while there was other competent 

counsel available in the relevant market, they would not have 

taken the case on a simple contingency fee and would have done 

so only if the multiplier was available.

“If there is no evidence that the relevant market required a 

contingency fee multiplier to obtain competent counsel, then a 

multiplier should not be awarded.” USAA Cas. Ins. Co. v. Prime 

Care Chiropractic Centers, P.A., 93 So. 3d 345, 347 (Fla. 2d 

DCA 2012) . . . . Because the record is devoid of any evidence 

that the relevant market required a contingency fee multiplier to 

obtain competent counsel, we reverse the trial court's application 

of a multiplier.

Deshpande, 314 So. 3d at 421 (citations omitted). For reasons similar to 

those stated by us in Desphande, we conclude that Levin failed to present 

any evidence below that the relevant market required a contingency fee 

multiplier to obtain competent counsel in this case.

Accordingly, we affirm the September 26, 2019 final judgment and that 

portion of the fees order determining the lodestar amount of fees to which 

Levin is entitled, but we reverse that portion of the fees order applying a 

contingency fee multiplier.

Affirmed in part, reversed in part, remanded for further proceedings.