Askowitz v. Susan Feuer Interior Design, Inc.
| Decision Date | 12 June 1990 |
| Docket Number | No. 89-1966,89-1966 |
| Citation | 563 So.2d 752 |
| Parties | 15 Fla. L. Weekly D1594 Gerald ASKOWITZ, Appellant, v. SUSAN FEUER INTERIOR DESIGN, INC., Appellee. |
| Court | Florida District Court of Appeals |
Evan J. Langbein, Miami, for appellant.
Roy D. Wasson, Miami, for appellee.
Before SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ.
The main issue in this appeal is a challenge to the application of the contingency risk multiplier to enhance the fee for prosecuting a small collection claim and defending a counterclaim based on the same contract where the defendant was the successful party on the counterclaim. We affirm the lodestar fee awarded to the plaintiff on the original claim and for defense of the counterclaim, and reverse the fee enhancement.
Susan Feuer Interior Design, Inc., commenced this action in the county court against Gerald Askowitz, an optometrist, seeking money owed plus interest for interior decorating services. Dr. Askowitz filed a counterclaim alleging negligent and incomplete performance of services under the contract. Because the damages sought in the counterclaim were in excess of $60,000, the case was transferred to the circuit court where it was presided over by the same judge, acting as a circuit judge on administrative order, to whom it had been assigned in the county court.
A partial summary judgment was entered for the design firm awarding it $6,408.58, inclusive of interest, for goods sold and delivered. Dr. Askowitz was awarded $400 on his counterclaim which was offset against the plaintiff's judgment. At the post-judgment hearing on fees the trial court ruled that Susan Feuer, Inc. was the only prevailing party for the purpose of awarding attorney's fees pursuant to the parties' contract, and assessed the amount at $18,375.
Askowitz contends in this appeal that (1) notwithstanding that the fee was contingent upon the plaintiff prevailing the award should be limited to forty percent of the net recovery, as was agreed to between the design firm and its attorney by terms of a contract, and (2) the court improperly enhanced the lodestar with a contingency risk multiplier--on the main claim and the counterclaim--resulting in an excessive fee award. We consider first the contingency risk multiplier.
As a basis for enhancing the fee the court found generally that the multiplier was necessary because of the "subject matter of the litigation" and "in order to attract competent counsel within the bar", citing this court's opinions in Travelers Indem. Co. v. Sotolongo, 513 So.2d 1384 (Fla. 3d DCA 1987) and Bankers Ins. Co. v. Gonzalez, 545 So.2d 907 (Fla. 3d DCA 1989). The trial judge then made separate determinations on the claim and counterclaim, applying different contingency risk multipliers to each. As to the plaintiff's claim the court adjudged:
1. The reasonable and necessary number of hours expended by Plaintiff's counsel is 15.
2. A reasonable hourly fee for Plaintiff's counsel in this matter is $150.00.
3. The lodestar figure to be applied in this matter is $2,250.00.
4. A contingency risk multiplier of 1.5 is utilized by the Court as there was a likelihood of success more likely than not.
On the counterclaim the court ruled:
5. The reasonable and necessary number of hours expended by Plaintiff's counsel in this matter is 50.
6. A reasonable hourly fee for Plaintiff's counsel in this matter is $150.00.
7. The lodestar figure to be applied in this matter is $7,500.00.
8. A contingency risk multiplier of 2 is utilized by the Court as the likelihood of success was approximately even at the outset.
Appellant invites us to examine the factors considered by the trial court in its upward adjustment of the lodestar fee. First, the case commenced as an ordinary small claim contract action, of the type which floods the county court system, to collect for goods and professional services rendered. An obligation to pay a fee in the event of an action to enforce the agreement is a standard feature of such sales contracts. The counterclaim, too, was a rather run-of-the-mill ploy to avoid payment which alleged that the services were poor and the goods...
To continue reading
Request your trial
-
Sarkis v. Allstate Ins. Co.
...that the prevailing party would have been unable to obtain competent counsel." Id. at 64 (quoting Askowitz v. Susan Feuer Interior Design, Inc., 563 So.2d 752, 754 (Fla. 3d DCA 1990)). Judge Schwartz further [w]hether any such showing can ever be made, and thus whether a multiplier is ever ......
-
Bell v. USB Acquisition Co., Inc.
...our decisions in Rowe or Quanstrom. See, e.g., Stack v. Lewis, 641 So.2d 969, 970 (Fla. 1st DCA 1994); Askowitz v. Susan Feuer Interior Design, Inc., 563 So.2d 752, 754 (Fla. 3d DCA 1990); Freedom Sav. & Loan Ass'n v. Biltmore Constr. Co., 510 So.2d 1141, 1142 (Fla. 2d DCA 1987); see also H......
-
Aries Insurance Co v. Aleman
...158 (Fla. 5th DCA 2000); Simmons v. Royal Floral Distribs., Inc., 724 So. 2d 99 (Fla. 4th DCA 1998); and Askowitz v. Susan Feuer Interior Design, Inc., 563 So. 2d 752 (Fla. 3d DCA 1990), rev. denied, 576 So. 2d 292 (Fla. 1991). Quoting from Pennsylvania v. Delaware Valley Citizens' Council ......
-
Independent Fire Ins. Co. v. Lugassy
...fixed by a contract does not preclude an award of fees for the defense of the counterclaim. See also Askowitz v. Susan Feuer Interior Design, Inc., 563 So.2d 752 (Fla. 3d DCA1990) (reversing the enhancement of lodestar fee and affirming fee award for defense of counterclaim), rev. denied, 5......