The Week in Torts – Cases from the Week of October 18, 2019

Small Case Not Worth $350K In Fees.

FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 42
CASES FROM THE WEEK OF OCTOBER 18, 2019

PROPOSAL AMOUNTS TO INDIVIDUAL DEFENDANTS ARE GENERALLY “SEPARATE”—REASONABLENESS OF FEE AWARD GENERALLY MUST TAKE INTO ACCOUNT RESULT AND ISSUES AT STAKE.

Nunez v. Allen, 44 Fla. L Weekly D2511 (Fla. 5th DCA October 11, 2019):

On remand from the Florida Supreme Court reversing two proposals for settlement. The Fifth District found to be ambiguous (the Supreme Court disagreed), the court then addressed the other arguments that had not considered in the first go-around, due to the ambiguity.

Those arguments were (1) that the trial court should have considered the separate proposals made by the owner and driver in this property damage case as one “aggregate” proposal, which would have resulted in plaintiff not meeting the threshold for entitlement; or (2) if the proposals were enforceable, the plaintiff should not have been awarded attorney’s fees for representing himself, or at the very least not after he engaged co­counsel; and (3) the amount of the fees awarded was unreasonable and not supported by competent substantial evidence.

After a two-day bench trial on the diminution of value of a vehicle (after a driver crashed into a parked car and the plaintiff sued the driver and his father, the owner), the trial court entered final judgment for approximately $29,000 plus pre-judgment interest, and reserved jurisdiction to award attorney’s fees.

The plaintiff had filed individual $20,000 dollar proposals for settlement to each defendant. The defendants argued that the proposals should have been added together, because the plaintiff had treated the co-defendants as a single entity, and they could only be jointly liable for any damages. The defendants argued that plaintiff failed to meet the threshold for fees because the proposal was really for $40,000.

Reminding us of recent Florida Supreme Court precedents, offers of settlement cannot be aggregated for the purpose of determining entitlement to attorney’s fees, because

§768.79 must be strictly construed, and individuals must be able to evaluate offers independently.

It is also well settled that attorneys may receive attorney’s fees for representing themselves. However, the court noted that once co-counsel is engaged, an award may only be made for time reasonably spent by an attorney performing actual legal services that were not duplicative of time expended by co-counsel.

The Fifth District questioned whether $343,000 in attorney’s fees could be reasonable in light of a case involving the diminution in value of the plaintiff’s six-year-old truck, the cost to repair the truck, and the loss of use of the truck.

The court observed that irrespective of the ‘expert’ opinions presented, appellate courts are not required to abandon their own expertise or common sense in scrutinizing an attorney’s fee award for reasonableness.

The court observed that its review of the record demonstrated that the case was neither novel nor complex, nor did it involve a matter of far-reaching jurisprudential significance. The defendant’s negligence was apparent from the outset, and the plaintiff’s lack of comparative negligence was also clear from the beginning, and there was no argument that the truck had sustained damage.

While the plaintiff presented evidence to support the attorney’s fees award under review, the Fifth District explained that “no court is obliged to approve a judgment which so obviously offends even the most hardened appellate conscience in and which is so obviously contrary to the manifest justice of the case.”

The number of hours claimed in the case, as the court noted, equated to one attorney working 40 hours per week on the case and not on any other, for almost four months.

The court found that the trial court’s attorney’s fees award was unreasonable and that it abused its discretion in making the award, necessitating reversal on that basis.