# Third District Court of Appeal State of Florida
Opinion filed March 2, 2022

. Not final until disposition of timely filed motion for rehearing.

________________ No s

. 3D 2 0

- 1806 & 3D21

- 323 Lower Tribunal No. 1 7

- 26269

________________ Impex Caribe Corp. , Appellant,

vs. Carl Levin, P.A., etc., et al. , Appellee s

. Appeal s from the C ircuit 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 appellee s

.
Before FERNANDEZ, C.J., and SCA L E S and GORDO , JJ. SCALES, J.2 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, 202 0 final judgment in favor of Levin on Levin’s claim to foreclos e a lien for
architectural services. 1 The fees order awarded Levin $142,187.50 in
atto rney’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 o f 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 n o 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 u se the lodestar approach set forth i n Florida Patient’s Com p ensation Fund v. Rowe , 472 So. 2d 1145 (Fla. 1985). The trial court arrives a t the lodestar amount by multiplying the number of reasonable hours expended by a reasonable hourly rate. Id. at 1150

- 51. This Court review s 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).3 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 mar ket 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, t he 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 t he 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:4 18. . . . As to the first [ Quanstrom ] prong, [Levin’s fees expert]

.

. . opined that the multiplier was necessary in order for plaintiff t o 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 practici ng 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 handl e 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 counsel5 without the opportunity for a multiplier.” Citizens Prop. Ins. Corp. v. Laguerre , 259 So. 3d 1 6 9, 1 77 (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 board

certified construction lawyer necessitated that Levin also have a well

qualified construction lawyer

. Levin’s fees exper t , 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 11 34

- 35. 3 Quite the contrary, on cross

- examination, Levin’s fees expert conceded that he was completely unaware of the number of construct ion lawyers and board

- certified construction lawyers practicing in
Miami

- Dade County.
Th e instant case is akin to Desphande , where , under similar circumstances, this Court reversed a pplication 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 tr ial counsel.6 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 multi plier 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 c ompetent counsel, we reverse the trial court's application of a multiplier. Deshpande , 314 So. 3d at 42 1 (citations omitted). For reasons similar to those stated by us in Desphande , we conclude that Levin failed to present any evidence below that the rele vant market required a contingency fee multiplier to obtain competent counsel in this case. Accordingly, we affirm th e 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.