Division of Administration, State Dept. of Transp. v. Condominium Intern.

• Court: Florida District Court of Appeals
• Writing for the Court: HENDRY
• Citation: Division of Administration, State Dept. of Transp. v. Condominium Intern., 317 So.2d 811 (Fla. App. 1975)
• Decision Date: 29 July 1975
• Docket Number: No. 75--385,75--385
• Parties: DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. CONDOMINIUM INTERNATIONAL, Individually, et al., Appellees.

Page 811

317 So.2d 811

DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. CONDOMINIUM INTERNATIONAL, Individually, et al., Appellees.

No. 75--385.

District Court of Appeal of Florida, Third District.

July 29, 1975.

Geoffrey B. Dobson, Winifred Sheridan Smallwood and George L. Waas, Tallahassee, for appellant.

Sibley, Giblin, Levenson & Ward, John R. Farrell, Miami, for appellees.

Before PEARSON, HENDRY and HAVERFIELD, JJ.

HENDRY, Judge.

This is an appeal by the Florida Department of Transportation (D.O.T.) from an order awarding the condemnee-appellee's attorney a $225,000 fee for his representation of the appellee in an eminent domain case. ¹

The trial judge, in entering the award, rendered a nine-page opinion containing a recitation of the facts and his interpretation of the law supporting the award of the attorney's fee.

We do not deem it necessary to repeat in detail the particular facts outlined in the trial court's order, although we would point out that the order has been beneficial in reminding this court that the trial judge was quite aware of the complexities of this case when he entered the award now at issue.

Of importance, was the court's finding that '(T)his was an exceptionally complex eminent domain proceeding. . . .' The appellee's attorney, John R. Farrell, testified that he spent from 2,000 to 3,000 hours on this case. (From the record, it is apparent that Farrell does not keep daily time records, and we agree with the appellant that Farrell's time estimate was in reality a 'guesstimate', not necessarily an accurate reconstruction).

Farrell further testified that he is an experienced condemnation lawyer (indeed 90 to 95 per cent of his work is exclusively devoted to this field of law) and that this case was the most difficult eminent domain case he has ever handled.

The court in its order summarized the monetary result achieved for Farrell's client, the appellee, in the following manner:

"Total Defendant Recovery:

 (including interest)       $1,521,557.73
                "Initial D.O.T. Offer       $  543,200.00
                "Result Achieved for
                 Defendant                  $  978,357.73."
                

Furthermore, the court 'noted that from the time this eminent domain proceeding was filed until the jury returned its verdict, the Department At no time undertook any steps toward the possibility of settlement without the necessity of trial.'

In addition, the trial judge observed that the appellee had obtained approximately a 300% Increase over the D.O.T.'s original offer despite the 'difficult psychological reality' that on October 10, 1972 when the D.O.T. deposited funds into the Registry of the Court (pursuant to the quick-take provisions of Chapter 74, Florida Statutes), the real estate market was in a comparably superior state to the market prevailing on November 4, 1974, the week of trial, when substantial economic recession problems had beset the real estate market.

The court below accepted the testimony of expert witnesses on behalf of Farrell as persuasive and helpful (while at the same time recognizing that it was not binding on the court). Farrell's witnesses, George W. Wright, Jr. and Toby Prince Brigham, each condemnation lawyers in their own right, testified respectively that a reasonable attorney's fee would be $225,000 and in the range of $244,000 to $275,000. (Farrell informed the court that a reasonable fee for himself would be $250,000).

While the court heard no evidence from the D.O.T. to rebut the expert testimony on Farrell's behalf, the attorney representing the Department at the hearing on the attorney's fee stated that a reasonable fee would be $150,000. (This figure was arrived at by multiplying 1,000 hours by $150 per hour; in other words, on a strict hourly basis.)

A reading of the testimony in the record reveals that there really is no precise means of reconstructing the amount of hours which Farrell devoted to this case. ² The cause spanned approximately two and a half to three years, and the D.O.T.'s counsel managed to obtain from Farrell a vague acknowledgment that he had spent approximately one-third of his time on this case alone.

Therefore, in its brief the D.O.T. calculates a reasonable fee which it contends approaches the fee recommended by its own attorney (viz., $150,000).

In doing so, the Department relies on an article which appeared in the April 1974 issue of the legal periodical Juris Doctor (entitled 'I'd Rather Do It Myself--How to Start Your Own Law Office' by Stephen Gillers). Therein the author states that the number of standard billable hours an attorney has per year ranges from 1,200 to 1,400.

Taking the latter figure as the amount of time expended by Farrell upon the instant case (1/3 of his time divided into the almost three-year period of the case), the D.O.T. multiplied that by $100 per hour (a figure a odds with the $150 figure employed before the trial court) and reaches a sum of $140,000 as a reasonable fee.

While the D.O.T.'s fee computation is plausible, we do not think the formula employed has been shown to include all the legal factors included in awarding a reasonable attorney's fee.

In Folmar v. Davis, Fla.App.1959, 108 So.2d 772, this court made the following statement of the law relative to attorney's fees:

'(1--3) The determination of the amount of the recovery was largely in the discretion of the trier of facts taking into consideration the service performed, the responsibility incurred, the nature of the service, the skill and time required, the circumstances under which it was rendered, the customary charges for like service, the amount involved, and the importance and results of the litigation. Also in estimating the value of an attorney's services his skill, experience, professional reputation, and even his amount of business may be taken into consideration. The testimony of expert witnesses is to aid and assist in the determination, but such testimony is neither conclusive nor binding on the court or the jury. See Munroe v. Birdsey, 102 Fla. 544, 136 So. 886; Baruch v. Giblin, 122 Fla. 59, 164 So. 831; Powell v....