Full Opinion

FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Case No. 5D2025-1458 LT Case No. 2021-CA-000558 _____________________________ SECURITY FIRST INSURANCE COMPANY D/B/A SECURITY FIRST FLORIDA, Appellant, v. MARK ANNON AND AMY ANNON, Appellees. _____________________________ On appeal from the Circuit Court for Flagler County. Andrea K. Totten, Judge. Michael Fox Orr and Loreyn P. Raab, of Orr Cook, Jacksonville, for Appellant. Michael Ciocchetti, of Michael Ciocchetti, PLLC, Daytona Beach, for Appellee. October 9, 2026 LAMBERT, J. Security First Insurance Company (“Security First”), which was the defendant below in a first-party property dispute that was resolved without a trial, timely appeals the trial court’s subsequent final judgment that awarded attorney’s fees against it under section 627.428, Florida Statutes (2021), 1 in favor of the appellees/insureds, Mark Annon and Amy Annon. Consistent with Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), the trial court first computed and then awarded to Appellees in its final judgment the lodestar amount of $125,080.00 for attorney’s fees, which Security First has not challenged in this appeal. The court then applied a 2.0 contingency fee multiplier to this lodestar figure, resulting in an attorney’s fees award to Appellees totaling $250,160.00, with which Security First does take issue. Security First primarily argues that the 2.0 multiplier award should be reversed because it is not supported by competent substantial evidence. Concluding that Security First is correct, we reverse the final judgment and remand with instructions to the trial court to enter an amended final judgment that awards the lodestar attorney’s fees sum of $125,080.00 to Appellees, without a multiplier. I In Standard Guaranty Insurance v. Quanstrom, 555 So. 2d 828 (Fla. 1990), the Florida Supreme Court set forth the following three factors to be utilized by courts when determining whether a multiplier is necessary in the instant type of case: (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 Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and [the] client. Id. at 834. 1 Section 627.428, Florida Statutes, which permitted an award of attorney’s fees in this type of case, was repealed in 2023. The claim in this case pre-dates the repeal. 2 As the party seeking attorney’s fees, Appellees had the burden to establish each of these factors to justify the contingency fee multiplier. See Foot & Ankle Ctr. of Fla., LLC, v. Vargas, 412 So. 3d 825, 828 (Fla. 6th DCA 2024) (citing Quanstrom, 555 So. 2d at 834). And “[w]hile the trial court’s determination to apply a multiplier to the lodestar amount is reviewed for an abuse of discretion, the trial court’s findings as to the multiplier must be supported by competent, substantial evidence.” Universal Prop. & Cas. Ins. v. Deshpande, 314 So. 3d 416, 420 (Fla. 3d DCA 2020) (citation omitted). II In arguing that the trial court’s application of the 2.0 contingency fee multiplier was not supported by competent substantial evidence, Security First contends that Appellees failed to meet their burden of presenting evidence sufficient to prove that the relevant market required a contingency fee multiplier to obtain competent counsel in this case. See SafePoint Ins. v. Castellanos, 394 So. 3d 731, 735 (Fla. 3d DCA 2024) (“If there is no evidence that the relevant market required a contingency fee multiplier to obtain competent counsel, then a multiplier should not be awarded.” (citation omitted)). Security First also contends that the trial court’s finding on the second prong or factor in Quanstrom, that Appellees’ counsel was unable to mitigate the risk of nonpayment in any way, lacks record evidentiary support. To establish the first factor under Quanstrom, Appellees were required to demonstrate, without inference, that they would have faced substantial difficulties in obtaining competent counsel in the relevant market without the risk-enhancement multiplier. See Little v. Bath & Kitchen Boutique, LLC, 435 So. 3d 1142, 1150 (Fla. 3d DCA 2026) (citing Foot & Ankle, 412 So. 3d at 829). Appellees did not testify at the attorney’s fees hearing; and their expert witness, who admitted under oath that he did not handle first-party property insurance cases such as the instant claim nor did he speak with Appellees, testified that he made no inquiry as to whether any other attorneys would have accepted 3 this type of case without the possibility of a contingency fee multiplier. See Impex Caribe Corp. v. Carl Levin, P.A., 338 So. 3d 13, 15 (Fla. 3d DCA 2022) (recognizing that the party seeking application of the multiplier “must establish ‘that a party would have difficulty securing counsel without the opportunity for a multiplier’” (quoting Citizens Prop. Ins. v. Laguerre, 259 So. 3d 169, 177 (Fla. 3d DCA 2018))); see also Bankers Life & Cas. v. Borew, 430 So. 3d 124, 128 (Fla. 4th DCA 2026) (“So, to award the multiplier, the record evidence must show that without risk- enhancement[,] plaintiff would have faced substantial difficulties in finding counsel in the . . . relevant market.” (alteration in original) (citation omitted)). Instructive on this issue is this court’s decision in PHH Mortgage Corp. v. Schreiber, 397 So. 3d 1159 (Fla. 5th DCA 2024), where the appellant challenged an attorney’s fees award with a contingency fee multiplier in a foreclosure case. Id. at 1159. The appellees’ expert there testified that for “almost all [foreclosure] clients, because they couldn’t pay their mortgage, they can’t pay their attorney or . . . they pay very little as compared to the amount of work involved.” Id. at 1160 (alteration in original). The expert further opined that, because of the client’s inability to pay, most foreclosures involved some type of contingency fee. Id. Concluding that this testimony said nothing about whether a foreclosure client could have obtained competent counsel without a multiplier, we reversed and remanded for entry of an amended judgment without the contingency multiplier. Id. Appellees’ expert’s testimony here was similarly lacking as to whether Appellees could have obtained competent counsel in the relevant market absent the possibility of a multiplier. We therefore hold, without further elaboration, that Appellees failed to meet their evidentiary burden under the first Quanstrom factor to support the imposition of the contingency risk multiplier. III We further find that Appellees did not present competent substantial evidence of the second Quanstrom factor that counsel was unable to mitigate the risk of nonpayment in any way. 4 “Generally, the controlling consideration in determining whether an attorney can mitigate the risk of nonpayment . . . is whether the plaintiffs can afford a retainer or hourly fees.” Certain Underwriters at Lloyd’s London v. Candelaria, 339 So. 3d 463, 470 (Fla. 3d DCA 2022) (quoting Wesson v. Fla. Peninsula Ins., 296 So. 3d 572, 573 (Fla. 1st DCA 2020)). Simply stated, there was no specific, non-inferential evidence before the trial court that Appellees could not have afforded or lacked the financial means to either pay a retainer fee or counsel’s hourly rate. Accordingly, we conclude that the trial court erred in applying the 2.0 contingency risk multiplier to the lodestar attorney’s fees amount. We therefore reverse that portion of the final judgment and remand with directions to the trial court to enter an amended final judgment that awards to Appellees the $125,080.00 lodestar attorney’s fees figure previously determined, with no multiplier. 2 REVERSED and REMANDED with directions. EDWARDS and BOATWRIGHT, JJ., concur. 2 On a final note, effective March 24, 2023, the Florida Legislature amended section 57.104, Florida Statutes, to provide that “[i]n any action in which attorney fees are determined or awarded by the court, there is a strong presumption that a lodestar fee is sufficient and reasonable,” and that “[t]his presumption may be overcome only in a rare and exceptional circumstance with evidence that competent counsel could not otherwise be retained.” § 57.104(2), Fla. Stat. Security First’s second argument for reversal here briefly argued that this statute should be applied retroactively and that this was not the rare and exceptional case to overcome the strong presumption that the lodestar fee awarded was sufficient and reasonable. While the record in this appeal supports Security First’s argument that this case was not rare and exceptional, based upon our disposition of Security First’s first issue on appeal, we find it unnecessary to address the retroactive applicability of section 57.104(2). 5 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 6