Division of Administration, State Dept. of Transp. v. Denmark

• Court: Florida District Court of Appeals
• Writing for the Court: LETTS
• Citation: Division of Administration, State Dept. of Transp. v. Denmark, 354 So.2d 100 (Fla. App. 1978)
• Decision Date: 04 January 1978
• Docket Number: No. 77-987,77-987
• Parties: DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Richard S. DENMARK et al., Appellees.

Page 100

354 So.2d 100

DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Richard S. DENMARK et al., Appellees.

No. 77-987.

District Court of Appeal of Florida, Fourth District.

Jan. 4, 1978.

Winifred Sheridan Smallwood and H. Reynolds Sampson, Gen. Counsel, State of Florida Dept. of Transp., Tallahassee, for appellant.

Spencer B. Gilbert of Gilbert & Horowitz, P.A., Fort Pierce, for appellee, Sibyl Hayes.

LETTS, Judge.

This is an interlocutory appeal from an award of $85,000 in attorneys fees in a condemnation suit which culminated in a verdict of $349,000 plus $16,600 in interest and $27,000 in costs taxed. We affirm.

The facts are that the State, all the way through trial, would only offer $117,000 for the land taken, claiming a special enhancement to the remainder of over $500,000. The property owner's attorney, a lawyer of long standing and much experience in condemnation cases, secured an award of $365,600 with no special enhancement deduction thereby benefiting his client by close to quarter of a million dollars over the highest offer. The fee amounted to some 35% of this benefit achieved.

The successful lawyer testified to over 200 hours actual legal work plus 50 more of outside preparation for a grand total of at least 250 hours, resulting in a fee of approximately $340.00 per hour. The only witness called on at the hearing on attorneys fees also testified that the case was worth a fee between $85,000 and $90,000. The judge awarded $85,000.

We are of the opinion that the fee was high, but find it difficult to reverse and remand as an abuse of the trial judge's discretion. Section 73.092 of the Florida Statutes, recently enacted, provides as follows:

In assessing attorney's fees in eminent domain proceedings, the court shall consider:

(1) Benefits resulting to the client from the services rendered.

(2) The novelty, difficulty, and importance of the questions involved.

(3) The skill employed by the attorney in conducting the cause.

(4) The amount of money involved.

(5) The responsibility incurred and fulfilled by the attorney.

(6) The attorney's time and labor reasonably required adequately to represent the client.

However, under no circumstances shall the attorney's fees be based solely on a percentage of the award.

This section clearly leaves the award of attorneys fees to the discretion of the court, within the above set parameters. In the case now before us, the client received an enormous benefit from the representation. The attorney must have used great skill (unless we are to assume that the State's appraisal of value was a deliberate underestimate). Certainly $250,000 is a large amount of money involved. The lawyer also resolved an important question concerning the alleged special enhancement and demonstrably fulfilled his responsibility to the utmost. There can be no doubt as to the complexity of the suit which required the property owner to obtain three experts whose fees totalled nearly $27,000. (The appraiser alone received $16,627). Furthermore, the expenditure of 250 hours on one case, translates into six exclusive weeks of this practitioner's time. Finally, although the statutory wording makes it clear that the award cannot be based "solely on a percentage of the award" (emphasis supplied), the very language employed reveals that the legislature contemplates that a fee based in part on a percentage, is a cognizable factor, even although the resulting fee in condemnation cases is certain rather than contingent.

On the other hand, the appellant cites several recent cases from other districts which, when compared to the case at bar, might mandate reversal. One such is Manatee County v. Harbor Ventures, Inc., 305 So.2d 299 (Fla. 2DCA 1975) in which a $70,000 fee for 135 hours work was found to be excessive although the attorney's efforts resulted in a $300,000 increase in the award. ¹ In Manatee, the court noted that a fee per hour of $517.00 was too much. Yet another recent case, from the Third District, is Dade County v. Oolite Rock Company, 311 So.2d 699 (Fla. 3 DCA 1975). In Oolite Rock, a fee of $111,700 was awarded for 118 hours work despite the fact that the supporting expert testimony was challenged by the political subdivision which used an opposing witness who recommended quantum meruit fees based on $200.00 per hour. The Third District reversed the award as excessive noting that the fee was the equivalent of $946.00 per hour. However, the hearing on attorneys fees in Oolite Rock came about because of a voluntary dismissal prior to trial. Thus, the litigation was far from over.

As can be seen from the foregoing, there are substantial fact differences between the two cases discussed in the preceding paragraph and the case now before us. Notably, the fee here is $340.00 per hour, vis a vis $946.00 and $517.00, and the instant suit involved a full blown trial brought to a final conclusion at that level.

Notwithstanding, we are aware that compensation at the rate of $340.00 per hour is mind boggling to most Americans, especially when it is not realized that such represents gross income rather than net profit. Furthermore, such awards should always be sharply scrutinized when we consider that the frustrated taxpayer is, by statute, called upon to make this payment, not the particular client receiving the benefit.

It would appear that recent appellate decisions in condemnation cases are leaning towards an hourly rate without actually mandating one. This is evidenced by repeated comparison of the fee awarded with the number of attorney hours, resulting in reversal for excessiveness. The most recent of these, dubbed Oolite "Two" (348 So.2d 902 (Fla. 3 DCA 1977)) is part of the same Oolite case already referred to, before the Third District again for resolution of the same attorneys fees. The last visit to the Third District of this portion of Oolite "One" resulted in a fee of $60,000 for 66 hours, being declared excessive. Accordingly, upon remand the trial judge halved the fee to $29,000 for the same 66 hours. Reviewing this fee for a second time, a new panel held that while the fee should not "necessarily" be geared to an hourly rate, $439.00 per hour was still excessive for "the kind of work involved". Absent the complete record we cannot say that we would not agree with the result, but the stated reasons for the fixing of the fee at $212.12 per hour instead, were not the yardsticks we would have used.

A blanket opinion that $212.00...