Josephthal Lyon & Ross, Inc. v. Durham
| Decision Date | 14 May 1999 |
| Docket Number | No. 98-682.,98-682. |
| Citation | 734 So.2d 487 |
| Parties | JOSEPHTHAL LYON & ROSS, INC., Appellant, v. Barbara L. DURHAM, et al., Appellee. |
| Court | Florida District Court of Appeals |
Robbie D. Lake Mayer and Ronald Shindler of Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, for Appellant.
Stephen D. Spivey, Ocala, for Appellee.
Josephthal Lyon & Ross, Inc. and Brian Ronoke ("Josephthal") appeal a final judgment awarding Barbara Durham attorney's fees following arbitration proceedings. We affirm the trial court's determination of entitlement but modify the amount of the award because it exceeds the fee agreement between Durham and her attorney.
Durham filed a Statement of Claim with the National Association of Securities Dealers ("NASD") charging Josephthal violated the NASD Rules of Fair Practice, the Florida Securities Investors Protection Act1 ("FSIPA"), and unspecified federal and state regulations. She asserted the violations resulted from Josephthal's misrepresentation, negligent supervision, unauthorized trading, and unsuitable investments. The parties agreed to arbitration and Durham prevailed, receiving an award of $28,564.53 in compensatory damages. The arbitration panel did not specify on which theory or theories of liability Durham had prevailed. However, the award stated:
3. The Respondents be and hereby are liable, jointly and severally, and shall pay to the Claimant her attorneys' fees as determined by a court of competent jurisdiction.
Durham thereafter applied to the circuit court for confirmation of the award and determination of a reasonable attorney's fee. Josephthal sought to vacate the portion awarding Durham attorney's fees, asserting that the arbitration panel had no authority to make such an award. The trial court agreed with Josephthal but found Durham nonetheless was entitled to attorney's fees.
At the hearing to determine the amount of the fee award, Durham presented a settlement statement showing her attorney received 33.3 percent of the arbitration award, or $9,197.36, as his fee. The fee agreement itself was not entered into evidence, and there was no testimony regarding its terms. Durham's expert witness testified the 86.20 hours claimed and the $200 hourly rate requested by Durham's attorney were reasonable in light of the complexity of securities litigation. The expert further opined a contingency risk multiplier of 1.75 would be appropriate. The court found the $200 hourly rate reasonable but found Durham's attorney expended only 77.2 hours on the NASD claim and fee entitlement. The court then enhanced the lodestar of $15,440 by a multiplier of 1.75, resulting in a fee award of $26,420.
Josephthal argues the trial court had no basis for awarding Durham attorney's fees because nothing in the arbitration award indicated she had prevailed on a claim which would entitle her to fees.2 We disagree.
Success on the FSIPA claim, see section 517.301, Florida Statutes (Supp.1992), would entitle Durham to an award of attorney's fees. Section 517.211(6), Florida Statutes (1995), provides:
In any action brought under this section, including an appeal, the court shall award reasonable attorneys' fees to the prevailing party unless the court finds that the award of such fees would be unjust.
Although the arbitration award was not explicitly based on the FSIPA claim, the panel did state Josephthal would be liable to Durham for her attorney's fees in an amount to be determined by the circuit court. This language was sufficient to permit a fee award under section 517.211(6). See Raymond, James & Assoc., Inc. v. Wieneke, 591 So.2d 956, 957-8 (Fla. 2d DCA 1991) (), rev. denied, 598 So.2d 79 (Fla. 1992). Cf. Pharmacy Management Services, Inc. v. Perschon, 622 So.2d 75 (Fla. 2d DCA 1993) (...
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Martin Daytona v. Strickland Const. Serv.
...fees, nor amount, are issues that the arbitrator may decide without the agreement of the parties."); Josephthal Lyon & Ross, Inc. v. Durham, 734 So.2d 487, 489 n. 2 (Fla. 5th DCA 1999); Charbonneau v. Morse Operations, Inc., 727 So.2d 1017, 1020 (Fla. 4th DCA 1999) ("[I]t is well settled th......
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Durden v. Citicorp Trust Bank
...fees [under section 517.211(6) ] is compelled by the statute unless the result would be unjust.”); Josephthal Lyon & Ross, Inc. v. Durham, 734 So.2d 487, 489 (Fla. 5th DCA 1999) (“Success on the FSIPA claim would entitle Durham to an award of attorney's fees [under section 517.211(6) ].”) (......
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Barron Chase Securities, Inc. v. Moser
...that the claimant should recover attorney's fees in an amount to be determined by the circuit court. See Josephthal Lyon & Ross, Inc. v. Durham, 734 So.2d 487 (Fla. 5th DCA 1999). Courts indulge this practice despite the well-settled rule that arbitrators do not have jurisdiction to determi......
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Moser v. Barron Chase Securities, Inc.
...Securities, Inc. v. Moser, 745 So.2d 965 (Fla. 2d DCA 1999), which expressly and directly conflicts with Josephthal Lyon & Ross, Inc. v. Durham, 734 So.2d 487 (Fla. 5th DCA 1999), on the issue of the jurisdiction and authority of a circuit court to award attorney's fees following arbitratio......
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Arbitration and attorneys' fees: a pandora's box; with the recent Florida Supreme Court decision in Moser, expanded judicial review of arbitrations awards may become a reality.
...Court of Appeal in Moser was in conflict with the Fifth District Court of Appeal decision in Josepthal Lyon & Ross, Inc. v. Durham, 734 So. 2d 487 (Fla. 5th DCA 1999), and that this issue needed resolution by the Florida Supreme Court. The Florida Supreme Court considered the contradict......