       Third District Court of Appeal
                                State of Florida

                          Opinion filed October 18, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D16-2323
                          Lower Tribunal No. 08-29374
                              ________________


              TRG Columbus Development Venture, LTD,
                                     Appellant,

                                         vs.

                                 Luis Sifontes,
                                     Appellee.


    An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.

      Greenberg Traurig, P.A., and Elliot H. Scherker, Brigid F. Cech Samole, and
Katherine M. Clemente, for appellant.

      Vila, Padron & Diaz, P.A., and Kara D. Phinney, for appellee.


Before SUAREZ, EMAS, and LOGUE, JJ.

      LOGUE, J.
      TRG Columbus Development Venture, LTD, appeals a second final

judgment awarding appellate attorney’s fees and costs to Luis Sifontes. Because

the trial court incorrectly concluded it was bound by the law of the case, we

reverse the award of a multiplier. We affirm all remaining portions of the judgment

without further comment.

      Sifontes previously prevailed in a breach of contract action against TRG.

This court affirmed the final judgment. TRG Columbus Dev. Venture, LTD, LLC

v. Sifontes, 138 So. 3d 458 (Fla. 3d DCA 2014) (table decision). The trial court

awarded attorney’s fees to Sifontes based on the underlying breach of contract

action and subsequent appeal. TRG then appealed that award of fees, and in a

written opinion this court affirmed, concluding that the trial court did not abuse its

discretion in determining the reasonable hourly rate and awarding a contingency

fee multiplier of 2.0 for trial fees. TRG Columbus Dev. Venture, LTD. v. Sifontes,

163 So. 3d 548 (Fla. 3d DCA 2015) (Sifontes II). This court then granted Sifontes’

motion for appellate attorney’s fees based on a prevailing party provision in the

underlying contract, and we remanded to the trial court for determination of

amount.

      Following a September 2016 hearing on fees, the trial court entered the final

judgment at issue in this appeal. The trial court awarded Sifontes a total of

$234,210.28 in appellate attorney’s fees. It found that 230.5 hours billed were



                                          2
compensable at an hourly rate of $450. Concluding that a multiplier was law of

the case based on this court’s prior decision in Sifontes II, the trial court applied a

multiplier of 2.0 to the lodestar of $103,725. We reverse the application of the

multiplier.

      As this court has recognized, “[t]he application of a multiplier is the

exception, not the rule” and the “strong presumption” that the lodestar figure is

reasonable is overcome only in exceptional and rare circumstances. State Farm

Fla. Ins. Co. v. Alvarez, 175 So. 3d 352, 357-58 (Fla. 3d DCA 2015). In order for

a trial court to award a contingency fee multiplier, it must consider the following

three factors:

              (1) whether the relevant market requires a contingency
              fee multiplier to obtain competent counsel;

              (2) whether the attorney was able to mitigate the risk of
              nonpayment in any way; and

              (3) whether any of the factors set forth in [Fla. Patient’s
              Comp. Fund v.] Rowe[, 472 So. 2d 1145 (Fla. 1985)] are
              applicable, especially, the amount involved, the results
              obtained, and the type of fee arrangement between the
              attorney and his client.

Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990).

      Here, the trial court acknowledged that it did not conduct any inquiry as to

the Quanstrom factors. Instead, it concluded—based on the reasoning of Stack v.

Lewis, 641 So. 2d 969 (Fla. 1st DCA 1994) and Board of Trustees of the



                                          3
Jacksonville Police & Fire Fund v. Kicklighter, 122 So. 3d 510 (Fla. 1st DCA

2013)—that it was bound by law of the case to apply the multiplier that was

previously applied to the litigation on the merits and affirmed by this court in

Sifontes II.

      In Stack, the First District affirmed a multiplier for both appellate fees and

trial fees, concluding that “there is no reason to treat the appellate hours differently

from the trial hours.” 641 So. 2d at 970. And in Kicklighter, the First District

relied on Stack to affirm a multiplier for appellate fees, noting, “when a trial court

makes the determination as to the appropriateness of a fee multiplier, that same

determination applies to the appellate fees expended by the same counsel in

litigating the case on appeal.” 122 So. 3d at 511.

      But Stack and Kicklighter are inapplicable here. Those cases involved fees

earned from direct appeals on the merits where any litigation over fees was only

tangential. The fees at issue here do not concern an appeal on the merits. Instead,

they largely concern the fees for a separate appeal regarding the extent and amount

of appellate fees after an appellate court already determined entitlement to

appellate attorney’s fees. At this stage, where fees—not merits—are the only

issue, and after the basic entitlement to fees has already been awarded by a prior

appellate decision, there is in fact “reason to treat the appellate hours differently

from the trial hours.” See Stack, 641 So. 2d at 970. Absent evidence of the



                                           4
applicability of the Quanstrom factors, the presumption that the novelty, difficulty,

and complexity of a case will be reflected in the number of hours reasonably spent

on the litigation returns to govern the dispute. Alvarez, 175 So. 3d at 357-58.

      Accordingly, because the trial court incorrectly concluded it was bound by

the law of the case, we reverse the award of a multiplier without prejudice to the

court awarding a multiplier in the event it properly finds the Quanstrom factors are

met after the appropriate hearing. We remand for further proceedings consistent

with this opinion.

      Affirmed in part; reversed in part and remanded.




                                         5
