CENTEX-ROONEY CONST. CO. v. Martin County

• Citation: 725 So.2d 1255
• Decision Date: 03 February 1999
• Docket Number: No. 97-1473,97-1473
• Parties: CENTEX-ROONEY CONSTRUCTION CO., INC., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, and The American Insurance Company, Appellants, v. MARTIN COUNTY, Florida, Appellee.
• Court: Florida District Court of Appeals

725 So.2d 1255

CENTEX-ROONEY CONSTRUCTION CO., INC., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, and The American Insurance Company, Appellants, v. MARTIN COUNTY, Florida, Appellee.

No. 97-1473

District Court of Appeal of Florida, Fourth District.

February 3, 1999.

John Beranek of Ausley & McMullen, Tallahassee, and Michael Evan Jaffe, David T. Dekker, and Bryan J. Sinclair of Arent Fox Kintner Plotkin & Kahn, Washington, D.C., for Appellant Centex-Rooney Construction Co., Inc.

James E. Glass and Andre Zamorano of James E. Glass Associates, Miami, for Appellants Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, and The American Insurance Company.

Daniel S. Pearson, Leslie King O'Neal, Mary Beth Cantrell and Gregory J. Johansen of Holland & Knight LLP, Orlando, for Appellee.

PER CURIAM.

This appeal arises from the trial court's award of statutory attorneys' fees and costs to Martin County ("the County"), stemming from the County's underlying breach of contract action against Centex Rooney Construction Company, Inc. ("Centex") and the Sureties in this "sick building case." We affirm in part and reverse in part the award of attorneys' fees and costs.

The County sought damages against Centex, the construction manager, for the defective and improper construction of the Martin County courthouse ("courthouse") and Constitutional office building ("office building"). During trial, the parties relied on the testimony of numerous experts, whose specializations included structural and electrical engineering, microbiology, and indoor air quality. At the conclusion of the five-week trial, the jury returned a verdict in the amount of $11,550,000, which the court reduced by $2,750,000, the amount received by the County in pretrial settlements with several subcontractors. The County ultimately recovered a final judgment of $14,211,156, including interest, against Centex and the Sureties, which this court affirmed. See Centex-Rooney Constr. Co., Inc. v. Martin County, 706 So.2d 20 (Fla. 4th DCA 1997),

rev. denied, 718 So.2d 1233 (Fla.1998). As part of the judgment, the trial court ruled that the County was entitled to an award of attorneys' fees and costs and retained jurisdiction to determine the amount.

The County moved for an award of statutory attorneys' fees and costs against Centex and the Sureties. Judge Kanarek, who presided over the case for three years of pretrial litigation and conducted the five-week jury trial, held a three-day evidentiary hearing to determine the amount of attorneys' fees and costs to be awarded to the County. During this hearing, the County submitted voluminous records, which were admitted into evidence, to support its attorney fee and cost application, and its lead trial attorney from the Orlando office of Holland & Knight ("H & K"), Leslie O'Neal ("O'Neal"), testified at length about case management and the complexities of the case. The County sought a total of $1,878,932.00 in attorneys' fees and $1,318,668.28 in costs against Centex and the Sureties, encompassing the five year period from August of 1991 through July of 1996.

The County retained H & K as its counsel in 1991 for representation with respect to the issues arising out of the construction of the courthouse and office building. Four primary attorneys from H & K were involved in the preparation and trial of the County's case, each handling discrete aspects of the litigation. The prosecution of the County's construction case against Centex and the Sureties was a massive undertaking. During pretrial discovery, H & K's lawyers reviewed hundreds of thousands of documents; interviewed and took depositions of over seventy lay and expert witnesses; and researched a myriad of legal, factual, and technical issues, which encompassed areas of microbiology, structural and electrical engineering, and air conditioning design and installation. The facts and issues in the construction litigation constantly evolved and became significantly more complex. The ongoing redesign and reconstruction of the buildings, which was the subject of the lawsuit, created complications in the case, and the discovery of each new problem resulted in the necessity for additional experts, witnesses, research, and analysis. Due to the intricate and highly technical nature of the issues involved, the presentation of the County's case to the jury required a high level of lawyering skill. Voluminous discovery occurred, requiring H & K to develop a computer program to catalogue the thousands of documents.

Following the evidentiary hearing, the court entered its final judgment on attorneys' fees and costs, containing detailed findings of fact and conclusions of law supported by relevant statutes and case law. After making necessary deductions for items which it deemed unrecoverable, the court awarded the County $1,813,701.00 in attorneys' fees against the Sureties; $618,598.50 in attorneys' fees against Centex; and $1,188,798.07¹ in costs against Centex and the Sureties, jointly and severally. The judgment specified that the attorneys' fees awarded to the County against the Sureties included the amount of attorneys' fees awarded against Centex, noting that the County was entitled to "only one recovery of this amount from the Sureties or from Centex-Rooney." Centex and the Sureties appeal from this final judgment.

I. THE AWARD OF ATTORNEY'S FEES

Centex contends that this court should reduce the County's overall attorneys' fee award by thirty-five percent in light of its allegations that H & K expended an unreasonable number of hours in prosecuting the County's case. More specifically, Centex asserts that the trial court erred in: (1) failing to reduce the award for H & K's unnecessary duplication of legal services; (2) failing to deduct fees for H & K's litigation of claims unrelated to Centex and the Sureties; and (3) awarding fees for H & K's travel time, office set-up, attendance at County Commission meetings, and media interface. The County disputes these assertions, claiming that "Centex and the Sureties [are] attempt[ing] to re-litigate the facts presented in the trial court" in this appeal.

It is well settled that the determination of an award of attorneys' fees is within the sound discretion of the trial court and will not be disturbed on appeal, absent a showing of a clear abuse of that discretion. See DiStefano Constr., Inc. v. Fidelity and Deposit Co. of Maryland, 597 So.2d 248, 250 (Fla.1992)

; Elliot v. Pallotti, 654 So.2d 1300, 1302 (Fla. 5th DCA 1995). The trial court's findings of fact with regard to an award of attorneys' fees are presumed to be correct, see Alternative Development, Inc. v. St. Lucie Club & Apartment Homes Condominium Ass'n, 608 So.2d 822, 828 (Fla. 4th DCA 1992), and the appellate court should not substitute its judgment for that of the trial court. See G.H. Johnson Constr. Co. v. A.P.G. Elec., Inc., 656 So.2d 566, 567 (Fla. 2d DCA 1995); see also Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)(trial court's discretion in determining attorneys' fee award is appropriate in view of its "superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters").

In Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985), the supreme court adopted the federal lodestar approach as the foundation for setting reasonable fee awards. "This approach requires the trial court to determine a `lodestar figure' by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party's attorney." Fashion Tile & Marble v. Alpha One Constr., 532 So.2d 1306, 1308 (Fla. 2d DCA 1988). In undertaking this analysis, the trial court must consider separately the reasonableness of the hourly rate and the number of hours expended. See Rowe, 472 So.2d at 1150-51

.

"Reasonably expended" means the time that ordinarily would be spent by lawyers in the community to resolve this particular type of dispute. It is not necessarily the number of hours actually expended by counsel in the case. Rather, the court must consider the number of hours that should reasonably have been expended in that particular case.... In this respect, the magnitude of the case should be a consideration.

In re Estate of Platt, 586 So.2d 328, 333-34 (Fla.1991)(emphasis in original). In determining the reasonableness of attorneys' fees, the court should utilize the following criteria:

(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(8) Whether the fee is fixed or contingent.

Rowe, 472 So.2d at 1150.

Upon considering the evidence adduced during the evidentiary hearing, the trial court made the following findings relative to the criteria enumerated in Rowe: (1) "this was a complex case, involving some difficult and novel questions," requiring a high level of skill; (2) H & K's acceptance of this engagement precluded it from handling other matters during late 1995 and early 1996; (3) H & K's fee was reasonable for similar legal services in this locality; (4) "[t]he amount involved in the case was substantial and the results obtained were excellent;" (5) the court imposed some time limitations on the parties; (6) H & K had no prior professional...