ALTON BRUCE MORGAN AND VIRGINIA BRUCE MORGAN, APPELLANTS,
v.
SOUTH ATLANTIC PRODUCTION CREDIT ASSOCIATION, APPELLEE

Fla. 1st DCA | 1988-07-13
No. 87-980
MILLS and SHIVERS, JJ., concur.
528 So. 2d 491 Florida District Court of Appeal, First District (1988) Positive Treatment
Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this foreclosure case, the appellate court reversed the trial court's award of attorney's fees because the fee was determined solely on the basis of an affidavit without an evidentiary hearing, despite the borrowers' timely objection. The court held that when a fee is contested, Florida law requires the trial court to conduct an evidentiary hearing and apply specific statutory guidelines for determining reasonable attorney's fees.


Holding

The court held that an attorney's fee awarded over objection solely on the basis of an affidavit or testimony of the attorney seeking the fee is improper absent a stipulation. When attorney's fees are contested, the trial court must conduct an evidentiary hearing and apply the criteria set forth in Rule 4-1.5 of the Rules Regulating the Florida Bar, including determining reasonable hours expended with specific findings, a reasonable hourly rate, and any adjustments for contingency risk or results obtained.


Headnotes

[1] An attorney's fee award made over objection solely on the basis of an affidavit, without an evidentiary hearing, is improper.

[2] A trial court must conduct an evidentiary hearing to determine attorney's fees when a party objects to the reasonableness of the fee or the time expended.

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Key Quotes

“absent a stipulation, an attorney's fee awarded, over objection, solely on the basis of an affidavit or testimony of the attorney seeking the fee, is improper”

Establishes the core principle that contested attorney's fees cannot be awarded on affidavit alone without hearing

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Facts & Procedural History

South Atlantic Production Credit Association filed a foreclosure complaint against the Morgans in January 1985. After the Morgans filed a Chapter 11 b…

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Opinion of the Court
JOANOS, Judge.

JOANOS, Judge.

Appellants Alton Bruce Morgan and Virginia Bruce Morgan appeal an attorney’s fee assessed against them in a final summary judgment of foreclosure. Appellants maintain the trial court erred in determining the attorney’s fee award, over objection, without an evidentiary hearing. We agree, and reverse.

On January 16, 1985, appellee South Atlantic Production Credit Association (formerly known as North Florida Production Credit Association) filed an amended complaint for foreclosure against appellants herein, together with other named defendants. After responsive pleadings and various orders were filed in the case, appellee moved for summary judgment. At the May 22, 1987, hearing, appellants’ opposition to entry of final summary judgment was predicated on their Chapter 11 bankruptcy proceeding. Appellants argued that the bankruptcy court had approved a reorganization plan, and entered a stay of all proceedings. The trial court declined to rule on the summary judgment motion without further argument and review of authority on the bankruptcy issue.

A second hearing was held July 17, 1987. This hearing was not reported. On the basis of argument and affidavits presented by appellee on the amount of a reasonable attorney’s fee, the trial court entered final summary judgment in favor of appellee and awarded a reasonable attorney’s fee.

In their initial brief, appellants contended that the trial court erred in determining an attorney’s fee, over objection, without granting them an evidentiary hearing on the issue. In the answer brief, appellee observed that the record before this court contained no transcript of the proceedings at which the attorney’s fee issue was ar gued. Appellee urged affirmance of the attorney’s fee award, arguing that this court may not reverse a decision of the trial court on the basis of claimed error which does not appear in the record. Thereafter, we granted appellants’ motion to abate the appeal so that the parties might submit statements of the proceedings to the trial court for approval and adoption. See Fla.R.App.P. 9.200(b)(3).

We are now in receipt of the statement of the proceedings, as amended and adopted by the trial court. This statement of proceedings establishes that appellants objected to the time claimed by appellee’s counsel, on the ground that a portion of that time had been devoted to the bankruptcy issue. Appellants also objected to the reasonableness of the fee recited in the affidavit, and requested an evidentiary hearing on the matter. The trial court determined that an evidentiary hearing was unnecessary, and awarded an attorney’s fee of $9,000.

In Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985), the supreme court provided specific guidelines to aid trial courts in setting attorney’s fees. These guidelines require application of the criteria set forth in Rule 4-1.5, Rules Regulating the Florida Bar. Briefly stated, the trial court should: (1) determine the hours reasonably expended, based upon a review of the attorney’s time records, which in turn would reflect “the novelty and difficulty of the questions involved;” (2) determine a reasonable hourly rate, which the party seeking the fees has the burden of establishing; (3) multiply hours reasonably expended by reasonable hourly rate for the attorney’s fee, which is subject to adjustment for a contingency risk factor and results obtained. Rowe, 472 So. 2d at 1150-1151. In addition, “[i]n determining the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors, the trial court must set forth specific findings.” Id., at 1151. See also Multitech Corporation v. St. Johns Bluff Investment Corporation, 518 So. 2d 427, 434 (Fla. 1st DCA 1988); Ashourian v. Ashourian, 519 So. 2d 35, 36 (Fla. 1st DCA 1987); Manuel v. Manuel, 498 So. 2d 1369 (Fla. 1st DCA 1986).

Prior to release of the Rowe opinion, the courts of this state dealt with attorney’s fees in much the manner specified in Rowe. That is, the courts approved attorney’s fee awards when there was record evidence regarding the attorney services performed and the reasonable value of those services. Furthermore, it is well settled that absent a stipulation, an attorney’s fee awarded, over objection, solely on the basis of an affidavit or testimony of the attorney seeking the fee, is improper. See, e.g., Boyette v. Carden, 347 So. 2d 759 (Fla. 1st DCA 1977); Cohen v. Cohen, 400 So. 2d 463 (Fla. 4th DCA 1981); Tanner v. Tanner, 391 So. 2d 305 (Fla. 4th DCA 1980); Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979); Marchion Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla. 3d DCA 1979); Ellis v. Barnett Bank of Lakeland, 341 So. 2d 545 (Fla. 2d DCA 1977); Benitez v. Benitez, 337 So. 2d 408 (Fla. 4th DCA 1976); Nivens v. Nivens, 312 So. 2d 201 (Fla. 2d DCA 1975). In a factual scenario somewhat analogous to the situation in this case, the Fourth District Court of Appeal said:

The final judgment of foreclosure awarded appellees an attorney’s fee in the amount of $15,000. This fee was assessed by the court based solely upon the affidavit of a lawyer and over the objection of appellants. In an adversary proceeding such as this the determination of an attorneys fee for the mortgagee based upon affidavits over objection of the mortgagor is improper.» Evidence should be adduced so that the full range of cross examination will be afforded both parties.

Geraci v. Kozloski, 377 So. 2d at 812. See also Gables Insurance Agency, Inc. v. Peninsula Federal Savings & Loan Association, 442 So. 2d 1013, 1014 (Fla. 3d DCA 1983).

In this case, as in Gables Insurance and Geraci v. Kozloski, the attorney’s fee issue was decided solely on the basis of an affidavit and over the objection of appellants. The statement of proceedings reflects that appellants objected both to the time ex pended and the reasonableness of the fee recited in the affidavit, and requested a hearing on the matter. Appellee’s primary argument, that is, that there was no record evidence that appellants objected to a fee determination based on the affidavit, is no longer viable in light of the supplemental record filed with this court. Therefore, that portion of the final summary judgment awarding attorney’s fees is reversed and remanded for further proceedings in compliance with the guidelines set forth by the supreme court in Florida Patient’s Compensation Fund v. Rowe.

Accordingly, the attorney’s fee portion of the final summary judgment order is reversed and remanded for further proceedings consistent with this opinion.

MILLS and SHIVERS, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Broyles v. Broyles, 573 So. 2d 357 (Fla. 5th DCA 1990)
    …. 2d 391 (Fla. 3d DCA 1977). An opportunity to adduce testimony and rebut must be afforded before entry. Gables Ins. Agency, Inc. v. Peninsula Federal Sav. & Loan Ass’n, 442 So. 2d 1013 (Fla. 3d DCA 1983); Morgan v. S. Atl. Production Credit Ass’n., 528 So. 2d 491 (Fla. 1st DCA 1988). We affirm the trial court’s dismissal with prejudice of appellant’s request for declaratory relief. Appellant filed his request for declaratory relief on November 8, 1989, arguing that Severs v. Severs, 426 So. 2d 992 (Fla. 5th…
  • Dvorak v. First Fam. Bank, 639 So. 2d 1076 (Fla. 5th DCA 1994)
    …ter alia, all its requested attorney’s fees based solely on the affidavits of the Bank’s witnesses.2 Even if additional attorney’s fees were appropriate in this action, this procedure was error. See Morgan v. South Atlantic Production Credit Assoc., 528 So. 2d 491 (Fla. 1st DCA 1988) (holding that upon specific objection to the setting of a fee without an evidentiary hearing, the party seeking the fee must present testimony concerning the necessity and reasonableness of the fee); Lafferty v. Lafferty, 413 So.…
  • …r attorney’s fees. Prior to the scheduled foreclosure sale, the Morgans took an appeal to this court challenging that portion of the judgment which awarded attorney’s fees to South Atlantic. In Morgan v. South Atlantic Production Credit Association, 528 So. 2d 491 (Fla. 1st DCA 1988), this court reversed the fee award and remanded the case for the trial court to set the fee according to the dictates of Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985). On remand, the trial court awarded…

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Authorities Cited (14 total)

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