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5th DCA: Appellate court cuts winning side's fees

By Juan C. Antúnez

Hoegh v. Estate of Johnson, --- So.2d ----, 2008 WL 2605068 (Fla.App. 5 Dist. Jul 03, 2008)

In this case there's no question whom the courts considered to be the villain of the story.

According to the trial court Hoegh, the appellant and pro se litigant, attempted to "perpetrate a fraud on the court" by knowingly seeking to have a forged will admitted to probate. According to the 5th DCA, Hoegh didn't do herself any favors on appeal, acting in "bad faith" because her appeal failed to raise any justiciable issue of law. And just to make sure everyone got the point, the 5th DCA charged the estate's reasonable appellate attorney's fees against Hoegh through application of the "inequitable conduct" doctrine.

So far so good for the estate.  But then the 5th DCA reversed the trial court's award of $37,125 in appellate fees, loping off $15,125 of the trial court's original fee award (a 41% reduction)!! So what happened? Sometimes a slam dunk can work against you. On appeal the court asked why the estate was claiming 135 hours worth of attorney time (over three weeks of full-time labor) on an appeal that was baseless? Apparently the estate couldn't come up with a convincing answer.

Notwithstanding Hoegh's misconduct, the estate is only entitled to recover reasonable appellate attorney's fees. Here, pursuant to Florida Rule of Appellate Procedure 9.400(c), Hoegh has filed a motion to review the trial court's award of $37,125 for appellate attorney's fees. (It appears that the trial court's award of $37,125 was based on multiplying 135 hours by an hourly rate of $275 .) She contends that this award was excessive. We agree.

The amount of appellate attorney's fees awarded by a trial court is reviewed by an abuse of discretion standard. Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997). However, an appellate court has a greater ability to review the reasonableness of an appellate attorney's fee award than an award for trial court work because the legal work was done in the appellate court. Id. at 285; see also G.H. Johnson Const. Co. v. A.P.G. Elec., Inc., 656 So.2d 566 (Fla. 2d DCA 1995); Dalia v. Alvarez, 605 So.2d 1282 (Fla. 3d DCA 1992). As previously noted, Hoegh did not raise any justiciable issue of law in her appeal. No oral argument was held. The primary issue presented to us was whether there was substantial competent evidence to support the trial court's decision. We find no error in the trial court's determination that $275 per hour was a reasonable rate for the estate's attorneys. However, after a thorough review of the record, we find that it was an abuse of discretion to find that more than 80 hours of attorney time was reasonably necessary for this appeal. Accordingly, we reverse the trial court's award of appellate attorney's fees and remand for entry of an order awarding the estate appellate attorney's fees of $22,000.

Full post as published by Florida Probate Litigation Blog on July 10, 2008 (boomark / email).