Brown & Williamson Tobacco Corp. v. Carter, No. 1D01-1480.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM.
• Citation: 848 So.2d 365
• Decision Date: 16 April 2003
• Docket Number: No. 1D01-1480.
• Parties: BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to The American Tobacco Company, Appellant, v. Grady CARTER and Mildred Carter, Appellee.

848 So.2d 365

BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to The American Tobacco Company, Appellant,
v.
Grady CARTER and Mildred Carter, Appellee

No. 1D01-1480.

District Court of Appeal of Florida, First District.

April 16, 2003.

Order Certifying Question June 26, 2003.

J.W. Prichard, Jr., and Robert B. Parrish, of Mosely, Warren, Prichard & Parrish, Jacksonville; and Thomas E. Riley, of Chadbourne & Parke, LLP, New York, New York, for Appellant.

Norwood S. Wilner and Gregory H. Maxwell, of Spohrer, Wilner, Maxwell & Matthews, PA, Jacksonville; and Ada A. Hammond and Charles M. Johnston, of Johnston, Hammond & Burnett, Jacksonville, for Appellees.

PER CURIAM.

Appellant challenges an award of trial attorney's fees. Based on the unpublished order in Brown & Williamson Tobacco Corp. v. Carter, Case No. SC-94,797 (Fla. Dec. 13, 2002), we affirm the trial court's application of section 768.79, Florida Statutes, but reverse the application of the contingency fee multiplier. Accordingly, we remand to the trial court to enter an award of trial attorney's fees of $707,000.00.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

BOOTH and HAWKES, JJ., concur.

KAHN, J., dissents with opinion.

848 So.2d 366

KAHN, J., dissenting

I respectfully dissent, and would affirm the attorneys' fee award now before us on appeal.

Appellees, Mr. and Mrs. Carter, obtained a jury verdict against Brown & Williamson in a tort action. This court then reversed the final judgment entered upon that jury verdict. See Brown & Williamson Tobacco Corp. v. Carter, 723 So.2d 833 (Fla. 1st DCA 1998) (Carter I). During the pendency of that case on appeal, the Carters moved for an award of attorneys' fees in the trial court based upon their offer of judgment under section 768.79, Florida Statutes (1995).

With regard to the amount of fees the trial court could award, Brown & Williamson made but one argument. As noted in the order entered by the trial court on April 11, 1997, Brown & Williamson urged that "an award of attorneys' fees, if any, should be limited to the contingent percentages set forth in Plaintiffs' original written contingent fee contract they agreed to with their attorneys." Brown & Williamson argued that pursuant to the contingency fee contract, any award of attorneys' fees would be limited to $337,500, or the equivalent of forty-five percent of the jury verdict of $750,000. Brown & Williamson and the Carters also stipulated that $707,000 would be an appropriate lodestar figure for the legal services performed by the Carters' lawyers.

Brown & Williamson expressly took no position on the application of a contingency risk multiplier. The trial court rejected Brown & Williamson's argument concerning a cap imposed by the contingency fee contract and proceeded to award a contingency risk multiplier of 2.5 pursuant to Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). Brown & Williamson then appealed the attorneys' fee order to this court.

In the meantime, the Florida Supreme Court accepted discretionary review of Carter I. Before the supreme court decided the merits of the main case, this court reversed the trial court's award of fees based upon our earlier reversal of the entire jury verdict. See Brown & Williamson Tobacco Corp. v. Carter, 728 So.2d 344 (Fla. 1st DCA 1999) (Carter II). Then, the Florida Supreme Court quashed this court's original decision in its entirety and reinstated the jury verdict. See Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932 (Fla.2000) (Carter III).

In the supreme court, the Carters had filed an appropriate motion for appellate attorneys' fees, again based on their offer of judgment. The supreme court granted this motion and remanded the matter to the trial court for a determination of appellate attorneys' fees. Also, as a result of the supreme court's action, the parties agreed that the trial court should reenter the attorneys' fee award reversed by this court in Carter II. The trial court reentered the order nunc pro tunc to April 11, 1997, and Brown & Williamson again appealed.

With the appeal of the trial fee award pending here, the trial court took up the question of appellate attorneys' fees due to the Carters' attorneys for the successful result ultimately obtained on appeal. As with the issue of trial fees, Brown & Williamson stipulated to the lodestar amount ($790,000) and expressly took no position with respect to application of a contingency risk multiplier to the stipulated lodestar figure. Brown & Williamson, in contesting the amount of...