DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PETER NALASCO, Individually and on behalf of the Peter Nalasco IRA, 

JOHANNE LAVOIE NALASCO, Individually and on behalf of the Johanne 

Lavoie Nalasco IRA, and LOUI JOHN NALASCO,

Appellants,

v.

BUCKMAN, BUCKMAN & REID, INC.,

Appellee.

No. 4D14-861

[July 15, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Carol-Lisa Phillips, Judge; L.T. Case No. CACE 13-

023089 (25).

Mark A. Tepper of Mark A. Tepper, P.A., Fort Lauderdale, for appellants.

Mark J. Astarita of Sallah Astarita & Cox, LLC, Verona, New Jersey, 

and Elaine D. Walter of Gaebe, Mullen, Antonelli & DiMatteo, Coral 

Gables, for appellee.

STEVENSON, J.

This is an appeal from a $22,000 attorney’s fee judgment in favor of the 

prevailing parties in a securities arbitration case. Counsel for the 

prevailing parties sought fees in the neighborhood of $300,000. The 

prevailing parties have appealed, arguing, among other things, that the 

findings in the judgment are inadequate. We agree and thus reverse the 

fee judgment, for this reason and for others, as discussed below.

The Underlying Case & the Attorney’s Fee Judgment

This appeal has its genesis in the arbitration of a $30,000 securities 

claim brought by the Nalascos against their broker, Buckman, Buckman 

& Reid, Inc. (Broker). The arbitrator resolved the matter “on the papers” 

without a hearing and awarded the Nalascos compensatory damages in 

the amount of $44,737. The arbitrator also determined that Broker was 

liable for the Nalascos’ attorney’s fees, pursuant to section 517.211, 
2

Florida Statutes (2013),

1 and directed the Nalascos to seek fees in the 

circuit court. 

Thereafter, the Nalascos filed a petition in the circuit court, seeking 

confirmation of the arbitration award and the award of attorney’s fees. The 

Nalascos had entered into a contingency fee agreement with their attorney, 

which allowed for a fee of “35% [o]f any recovery related to the arbitrable 

claim(s)” and “45% [o]f any recovery if there are post arbitration 

proceedings.” The agreement expressly recognized, however, that

attorney’s fees may be awarded to the prevailing party and, in that event, 

the fee would be the greater of that award or the amount agreed to by the 

client.

During the subsequent proceedings on attorney’s fees, the Nalascos’

counsel offered affidavits indicating he had invested 164 hours in the 

arbitration proceedings and an additional 145.9 hours during the circuit 

proceedings. His paralegal had spent an additional 60.7 hours on the 

case. The Nalascos’ counsel took the position that Broker had waged a 

“militant defense,” which served to drive up the attorney’s fees. Counsel 

charged $425 per hour for his time and $125 per hour for his paralegal’s 

time. The parties stipulated these hourly rates were reasonable. The 

Nalascos’ attorney’s fee expert opined a multiplier of 2 was appropriate.

In contrast, Broker had spent a total of 72 hours on the case. It argued 

the number of hours invested by the Nalascos’ attorney was unreasonable 

as the case was “typical” and the underlying investment account had been 

active for only four months. The Broker’s fee expert opined the case was 

neither factually nor legally complex and had not warranted the hours 

spent by the Nalascos’ counsel. It was her opinion that the 45% of recovery 

provided for in the fee agreement was a reasonable fee and that no 

multiplier was warranted.

Ultimately, the trial court entered an order awarding the Nalascos 

$22,000 in attorney’s fees, looking to the fee agreement between the 

Nalascos and their counsel as establishing a reasonable fee. The Nalascos 

raise numerous challenges to the $22,000 fee award. Chief among the 

Nalascos’ appellate arguments are their claims that the fee order must be 

reversed because the trial court failed to make the findings required by 

1 Section 517.211, Florida Statutes, entitled “Remedies available in cases of 

unlawful sale,” provides, in relevant part, that “[i]n any action brought under this 

section, including an appeal, the court shall award reasonable attorneys’ fees to 

the prevailing party unless the court finds that the award of such fees would be 

unjust.” § 517.211(6), Fla. Stat. (2013). 
3

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

modified by Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 

828 (Fla. 1990), and because the trial court erroneously treated the instant 

case as a Quanstrom category 1 public policy case, rather than a category 

2 tort and contract case. As we find merit in these arguments, the fee 

award must be reversed and the matter remanded. We write to address 

these issues and also matters concerning the recovery of fees for time 

spent litigating the amount of fees and prejudgment interest.

Rowe & Contingency Fee Multipliers

In Rowe, the Florida Supreme Court adopted the federal lodestar 

approach for determining the amount of a reasonable attorney’s fee. 472 

So. 2d at 1150. The first step of that lodestar approach “requires the court 

to determine the number of hours reasonably expended” and the second 

step “requires the court to determine a reasonable hourly rate.” Id. at 

1150. “The number of hours reasonably expended, determined in the first 

step, multiplied by a reasonable hourly rate, determined in the second 

step, produces the lodestar, which is an objective basis for the award of 

attorney fees.” Id. at 1151. 

Once the trial court has arrived at the lodestar figure, if counsel has 

been employed on a contingency basis, then the trial court must determine 

whether a “contingency risk factor” multiplier is appropriate. Id. The 

factors to be applied in determining whether a multiplier is appropriate 

turn upon which category of cases is at issue: public policy enforcement 

cases; tort and contract claims; or family law, eminent domain, and estate 

and trust matters. Quanstrom, 555 So. 2d at 833. The trial court is not 

required to apply a contingency multiplier, but is required only to consider 

whether a multiplier is warranted. Id. at 831. 

Here, the trial court found that $22,000 was a reasonable fee without 

making any findings regarding a reasonable number of hours or a 

reasonable hourly rate. The trial court’s failure to make express findings 

as to the reasonable number of hours and a reasonable hourly rate renders 

the fee judgment “‘fundamentally erroneous on its face,’” requiring reversal 

of the fee order and remand to the trial court. Delmonico v. Crespo, 127 

So. 3d 576, 578–79 (Fla. 4th DCA 2012) (quoting Baratta v. Valley Oak 

Homeowners’ Ass’n at the Vineyards, Inc., 891 So. 2d 1063, 1065 (Fla. 2d 

DCA 2004)); see also Ingram v. Ingram, 59 So. 3d 147, 148 (Fla. 1st DCA 

2011) (“In circumstances where the record may contain competent, 

substantial evidence to support these specific findings, but the trial court’s 

order omits such findings, the case should be remanded for entry of an 

appropriate order.”). 
4

Additionally, in refusing to apply a multiplier, the trial court made 

findings suggesting it believed this securities case was properly treated as 

a category 1 public policy enforcement case. The trial court erred in 

treating the instant case as a category 1 public policy enforcement case, 

rather than a category 2 tort and contract claims case. See Raymond, 

James & Assocs., Inc. v. Wieneke, 591 So. 2d 956, 958 (Fla. 2d DCA 1991)

(recognizing some ambiguity but concluding that litigation concerning 

securities transactions under chapter 517 does not fall under the 

definition of a “public policy enforcement case”). This is potentially 

significant as the use of multipliers is restricted in category 1 public policy 

enforcement cases. See Lane v. Head, 566 So. 2d 508, 513 (Fla. 1990) 

(Overton, J., specially concurring) (opining that “the use of a multiplier in 

this category [public policy enforcement] is severely restricted”); Boardman 

Petroleum, Inc. v. Tropic Tint of Jupiter, Inc., 668 So. 2d 308, 310 n.1 (Fla. 

4th DCA 1996) (recognizing that, in Quanstrom, the supreme court 

severely restricted the use of multipliers in public policy enforcement 

cases); Meli Inv. Corp. v. O.R., 621 So. 2d 676, 677 (Fla. 3d DCA 1993) 

(citing Justice Overton’s special concurrence in Lane in support of the 

restrictive use of multipliers in public policy cases). Thus, on remand, the 

matter of whether a category 2 tort and contract claims multiplier is 

appropriate must also be reconsidered. 

Due to findings in the order appealed regarding the “50/50” “chance of 

success” and the use of a multiplier, we take this opportunity to note that, 

in Quanstrom, the supreme court set forth the following parameters

regarding multipliers:

If the trial court determines that success was more likely than 

not at the outset, it may apply a multiplier of 1 to 1.5; if the 

trial court determines that the likelihood of success was 

approximately even at the outset, the trial judge may apply a 

multiplier of 1.5 to 2.0; and if the trial court determines that 

success was unlikely at the outset of the case, it may apply a 

multiplier of 2.0 to 2.5.

555 So. 2d at 834.

Fees for Time Spent Litigating the Amount of Fees

Citing State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 

1993), the trial court ruled that the Nalascos’ counsel was not entitled to 

recover for any time spent litigating the amount of fees to be awarded. The 

Nalascos insist the trial court erred in applying Palma to a fee award under 

section 517.211. We reject their argument.
5

In Palma, which involved attorney’s fees in the context of an insurance 

case, pursuant to section 627.428, Florida Statutes, the supreme court 

held that, while fees incurred litigating entitlement to fees were 

recoverable, fees incurred litigating the amount of fees to be awarded were 

not as such services are solely to the attorney’s benefit. 629 So. 2d at 833. 

In the years since Palma, its holding that attorney’s fees may not be 

recovered for time spent litigating the amount of fees has been applied to 

numerous fee statutes, including section 517.211, the fee statute at issue 

here. See Barron Chase Sec., Inc. v. Moser, 794 So. 2d 649 (Fla. 2d DCA 

2001). Pirretti v. Dean Witter Reynolds, Inc., 578 So. 2d 474 (Fla. 4th DCA 

1991), cited by the Nalascos, was decided prior to Palma.

Prejudgment Interest

The trial court’s fee judgment made no provision for the award of 

prejudgment interest. The Nalascos contend that this was error and the 

judgment should have included prejudgment interest, accruing from the 

date that entitlement to fees was determined. We agree. See Quality 

Engineered Installation, Inc. v. Higley S., Inc., 670 So. 2d 929, 931 (Fla. 

1996) (holding, in context of contractual prevailing party fee provision, that 

interest accrues on attorney’s fees from the date entitlement is determined, 

even though amount has not yet been set); Genser v. Reef Condo. Ass’n, 

100 So. 3d 760, 761–62 (Fla. 4th DCA 2012) (applying Quality Engineered

to chapter 718 prevailing party fee award pursuant to Rowe); Olde 

Discount Corp. v. Amsel, 800 So. 2d 667, 667 (Fla. 5th DCA 2001) (applying 

Quality Engineered to chapter 517 fees).

Conclusion

The fee judgment appealed is thus reversed on the grounds discussed 

herein and the matter remanded to the trial court. As to all other issues 

raised but not specifically addressed, we affirm.

Affirmed in Part; Reversed in Part; and Remanded.

CIKLIN, C.J., and KLINGENSMITH, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.