Schick v. Dept. of Agric. & Cons. Services

599 So. 2d 641, 1992 WL 56359
CourtSupreme Court of Florida
DecidedMarch 26, 1992
Docket77906
StatusPublished
Cited by23 cases

This text of 599 So. 2d 641 (Schick v. Dept. of Agric. & Cons. Services) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schick v. Dept. of Agric. & Cons. Services, 599 So. 2d 641, 1992 WL 56359 (Fla. 1992).

Opinion

599 So.2d 641 (1992)

Marjorie and Robert SCHICK, et al., Petitioners,
v.
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Respondent.

No. 77906.

Supreme Court of Florida.

March 26, 1992.
Rehearing Denied June 30, 1992.

Randall E. Denker of Lehrman and Denker, Tallahassee, for petitioners.

Clinton H. Coulter, Jr., Tallahassee, for respondent.

PER CURIAM.

We have for review Department of Agriculture & Consumer Services v. Schick, 580 So.2d 648 (Fla. 1st DCA 1991), (Schick IV), in which the district court certified the following question of great public importance:

IN DETERMINING THE REASONABLENESS OF AN ATTORNEY'S FEE AWARD MADE PURSUANT TO THE PROVISIONS OF SECTION 73.092, FLORIDA STATUTES, IS THE ROWE[[1]] CONTINGENCY RISK MULTIPLIER APPLICABLE IN AN INVERSE CONDEMNATION ACTION, BASED UPON A RECORD IN WHICH IT IS CLEARLY APPARENT THAT IT WAS INITIALLY HIGHLY UNCERTAIN WHETHER THE CLAIMANTS WOULD PREVAIL ON THE THRESHOLD ISSUE OF A TAKING?

Id. 580 So.2d at 651. We have jurisdiction, Art. V, § 3(b)(4), Fla. Const. We answer the certified question in the negative and approve the decision below.

The Department of Agriculture (the Department) was ordered to pay attorney's fees to the petitioners, Robert and Marjorie Schick, Buck Hull, and Dot Hull Shaw (the *642 Schicks) in an inverse condemnation action. The Schicks had filed suit to recover damages that arose from the contamination of their well water with ethylene dibromide (EDB). The contamination resulted from the Department's program of spraying EDB on orange groves near the Schicks' property. Because the contamination rendered their well water useless, one of the Schicks' legal theories and the claim on which they ultimately prevailed[2] was inverse condemnation.

In their complaint, the Schicks requested that costs, including reasonable attorney's fees, be assessed against the Department pursuant to section 73.091, Florida Statutes (1987).[3] The trial court awarded attorney's fees of 800 hours at $150 per hour at the trial level, and 21 hours at the same rate for the appellate fee. The trial court then enhanced the attorney's fee awards by applying a Rowe "contingency risk" multiplier of 2.5 to the trial fee, and 2.0 to the appellate fee. However, the court failed to set forth specific findings to support application of the fee multipliers.

On appeal the district court reversed the award, holding that the trial court erred in awarding attorney's fees that included a Rowe contingency risk multiplier without making specific findings to support application of the multiplier. Department of Agric. & Consumer Servs. v. Schick, 553 So.2d 361, 362 (Fla. 1st DCA 1989) (Schick III). However, although the district court recognized that "[f]requently a fee awardable pursuant to section 73.091 would not appropriately include a contingency risk factor," it rejected the contention that the trial court erred in applying a risk multiplier to the fees awarded in this case. Id. It concluded that under circumstances such as this, where entitlement to a fee under section 73.091 does not vest until the land-owner overcomes the hurdle of showing inverse condemnation, application of a contingency risk factor can be upheld if adequate reasons for the award are set forth by the trial court. Id.

On remand, the trial court reinstated its earlier fee award, this time including a detailed order supporting application of the contingency risk multipliers. The Department appealed, again complaining of the use of Rowe risk multipliers. In the decision under review, Schick IV, the district court reexamined the issue,[4] in light of the release of our intervening decision in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990).

Recognizing that its holding in Schick III appeared to be in conflict with Quanstrom, the district court reversed the award of multiplier-enhanced attorney's fees, and remanded with directions to determine the attorney's fee award based solely on the factors set forth under section 73.092.[5]Schick IV, 580 So.2d at 651. The *643 district court reasoned that based on this Court's decision in Quanstrom:

if a statute exists, as here, in which the legislature has set forth specific criteria that must be considered by a tribunal when deciding a reasonable award of an attorney's fee, that specific statute controls — not Rowe — and if the statute does not contemplate the use of additional factors, such as multipliers, then those factors cannot be considered in determining the award.

Id. at 650. We agree that where the legislature has set forth specific criteria for determining reasonable attorney's fees to be awarded pursuant to a fee-authorizing statute, the trial judge is bound to use only the enumerated criteria.

In Quanstrom, we examined the use of contingency fee multipliers under the following three basic categories of attorney's fees cases: 1) public policy enforcement cases; 2) tort and contract claims; and 3) family law, eminent domain, and estate and trust matters. Quanstrom, 555 So.2d at 833. In discussing the second category, tort and contract claims, we noted that where the legislature has been very specific in setting the criteria that can be considered in determining a reasonable attorney's fee, utilization of the lodestar method, with its contingency risk factors, is "unnecessary." Id. at 834-35. While discussing the third category, which includes eminent domain actions where the attorney is assured of a fee under section 73.091, we noted:

Under ordinary circumstances, a contingency fee multiplier is not justified in this category, although the basic lodestar method of computing a reasonable attorney's fee may be an appropriate starting point.

Id. at 835. See also In re Estate of Platt, 586 So.2d 328, 335 (Fla. 1991) (although contingency fee multiplier ordinarily is not appropriate in category three cases, determining a reasonable hourly rate for a particular type of legal service and the number of hours that reasonably should be expended in providing those services is an appropriate starting point for computing a reasonable fee in eminent domain and most other proceedings).

The district court properly construed our decision in Quanstrom as effectively overruling Schick III. This is because the legislature has specifically included in section 73.092 the criteria to be considered in awarding attorney's fees pursuant to section 73.091, and neither the contingent nature of the fee arrangement nor the risk of nonpayment of fees is an authorized consideration. We therefore answer the certified question in the negative and hold that in determining the reasonableness of an attorney's fee award, made pursuant to section 73.091 in an inverse condemnation action, a Rowe contingency risk multiplier should not be utilized.

Where the legislature is silent on the factors it considers important in determining a reasonable fee, courts may look to the criteria enumerated in rule 4-1.5 of the Rules Regulating The Florida Bar,[6] and may apply Rowe risk multipliers where appropriate. See Quanstrom. However, *644

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Bluebook (online)
599 So. 2d 641, 1992 WL 56359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schick-v-dept-of-agric-cons-services-fla-1992.