Opinion
No. 1D18-3930
04-27-2020
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Dianya MARKOVITS, Appellee.
Marsa S. Beck of Taylor, Day, Grimm & Boyd, Jacksonville; Susan M. Seigle of Alvarez, Winthrop, Thompson & Storey, P.A., Gainesville, for Appellant. Julie Aleve Fine and Cherie H. Fine, of Fine, Farkash & Parlapiano, P.A., Gainesville, for Appellee.
Marsa S. Beck of Taylor, Day, Grimm & Boyd, Jacksonville; Susan M. Seigle of Alvarez, Winthrop, Thompson & Storey, P.A., Gainesville, for Appellant.
Julie Aleve Fine and Cherie H. Fine, of Fine, Farkash & Parlapiano, P.A., Gainesville, for Appellee.
Per Curiam.
This appeal follows a post-remand order determining attorney's fees pursuant to section 768.79, Florida Statutes. This Court now considers whether the trial court erred in granting fees incurred after entitlement to fees was established.
While ordinarily orders determining attorney's fees are reviewed for abuse of discretion, an award of attorney's fees involving an interpretation of a statute is reviewed de novo. Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co. , 132 So. 3d 858, 862 (Fla. 4th DCA 2014). Because the attorney's fees in this case are claimed under Florida's offer of judgment statute, section 768.79, Florida Statutes, we review de novo. Cassedy v. Wood , 263 So. 3d 300, 302 (Fla. 1st DCA 2019).
In this case, State Farm rejected Markovits’ settlement proposal and then Markovits received a judgment after trial that was at least 25% larger that the settlement offer. Markovits moved for attorney's fees pursuant to section 768.79 and a hearing was held where both parties presented testimony and experts regarding fees and costs. The trial court denied attorney's fees, finding that the proposal was served prematurely. This Court reversed the trial court, found that Markovits was entitled to attorney's fees, and remanded the matter back to the trial court "for a hearing to determine the amount of reasonable fees to be awarded." Markovits v. State Farm Mut. Auto. Ins. Co. , 235 So. 3d 1018, 1020 (Fla. 1st DCA 2018). This Court also granted Markovits’ motion for appellate attorney's fees and the cause was remanded to the trial court to assess the amount.
During the post-remand hearing, Markovits’ counsel maintained that entitlement was still an issue and presented testimony regarding the work done from the initial appeal through the post-remand hearing . The order then awarded $246,859.50 in trial attorney's fees and $75,937.50 in appellate attorney's fees for a total lodestar fee of $322,797.00, and a total of $13,940 in costs, which included $5,560 in taxable costs, and $8,380 for experts.
"Although fees incurred in litigating entitlement to attorney's fees under section 768.79 are authorized, fees incurred in litigating the amount of fees are not recoverable." Palm Beach Polo Holdings , 132 So. 3d at 862 ; Oruga Corp., Inc. v. AT &T Wireless of Florida, Inc. , 712 So. 2d 1141, 1145 (Fla. 3d DCA 1998).
Accordingly, the trial court erred by awarding attorney's fees for work done post-mandate. On appeal, this Court clearly found that Markovits was entitled to attorney's fees for trial and appellate work. The only issue being litigated on remand was the reasonable amount of fees, not entitlement. Since entitlement was no longer at issue, work after the mandate was either spent on litigating the amount of fees or spent unnecessarily litigating entitlement to fees. While Markovits argues that entitlement was still an issue because State Farm sought review of this Court's decision to the Florida Supreme Court, that fact is irrelevant. This Court denied State Farm's motion to stay mandate pending the resolution of whether the Florida Supreme Court was going to accept the case. Therefore, the mandate issued and the trial court was bound to follow it. See Basic Energy Corp. v. Hamilton Cty. , 667 So. 2d 249, 250 (Fla. 1st DCA 1995) (quoting Torres v. Jones, 652 So. 2d 893 (Fla. 3d DCA 1995) ) (internal quotation marks omitted) (finding that "[a] trial court's role upon the issuance of a mandate from an appellate court becomes purely ministerial and its function is limited to obeying the appellate court's order or decree. ... A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form, and may not change the law of the case as determined by the highest court hearing the case").
In conclusion, Markovits is only entitled to recover attorney's fees up to this Court's mandate in case no. 1D17-1623. Therefore, we reverse and remand with instructions to recalculate the award of attorney's fees by omitting any rates and hours associated with post-mandate work.
REVERSED and REMANDED with instructions.
B.L. Thomas, Winokur, and Jay, JJ., concur.