Fekany v. State Road Dept., 1227

• Decision Date: 04 November 1959
• Docket Number: No. 1227,1227
• Citation: 115 So.2d 418
• Parties: Leon Allen FEKANY et al., Appellants, v. STATE ROAD DEPARTMENT of Florida, an Agency of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 418

115 So.2d 418

Leon Allen FEKANY et al., Appellants, v. STATE ROAD DEPARTMENT of Florida, an Agency of the State of Florida, Appellee.

No. 1227.

District Court of Appeal of Florida, Second District.

Nov. 4, 1959.

Kirkland & Hurt Associates and Sam E. Murrell & Sons, Orlando, for appellants.

Clyde G. Trammell, Jr., Tallahassee, for appellee.

ALLEN, Chief Judge.

The appellee, as plaintiff in the lower court, filed a petition for condemnation of defendants' property under Florida Statutes, Chapters 73 and 74, F.S.A. The defendants filed their answers admitting ownership and requested damages, attorneys' fees, and costs as provided by law. Trial was had before a jury which resulted in a verdict for Cortina for $8,000, plus attorney's fees of $250; a verdict for Rojek for $12,050, plus attorney's fees of $250; a verdict for Fekany for $11,150 plus attorney's fees of $250; and a verdict for Wilder for $18,150 plus attorney's fees of $250.

Motions for new trial or judgment notwithstanding the verdict were made by the defendants on the basis that the attorneys' fees were grossly inadequate. These motions were denied by the lower court and this appeal is before this court solely on the question of the adequacy of the awards with respect to attorney's fees.

The appellants introduced one witness during the trial on the issue of attorneys' fees. After being qualified as an expert witness, he testified on direct examination:

'Q. Mr. Whittaker, as not only a practicing attorney, but a member of the various bar associations and president of the local bar association, having done this type of work, are you familiar with the reasonable charges of attorneys for persons involved as defendants in eminent domain and condemnation proceedings? A. I am.

'Q. Based on your knowledge of these various matters, what would you say, and what is your opinion of a reasonable fee to be paid the defendants for services of their attorneys in representing them in this particular suit? A. In my opinion, a reasonable fee for such services would be a minimum fee in any case, regardless of the amount involved, of $100.00 and in addition thereto ten percent of the amount that was subsequently directed to be paid to the defendant property owner.

'Q. It is your opinion then that $100.00 plus ten percent of the verdict that the defendant gets would adequately compensate the defendants for the services of their attorneys? A. I believe that it would.

'Q. And that coupled with the hundred would be just compensation to be paid by the defendant to his attorney, in your opinion? A. It would.'

On cross-examination the expert witness, Mr. Whittaker, stated:

'Q. Let me ask you this question, Mr. Whittaker. What in your opinion would be a reasonable fee to pay the property owner for his attorney in an eminent domain proceeding? A. I have already given that opinion and I understand what you are getting at and you can stop me if my answer is not responsive, but in my opinion the ten percent of the verdict awarded for the taking of a property owner's property would apply up to a figure of $15,000.00 and beyond that, in my opinion a reasonable fee would reduce that percentage fee to five percent of the balance over $15,000.00.

'Q. You are still of that opinion: A. I am.'

This is the only evidence in the record before this court on the reasonableness of the attorneys' fees. There is neither testimony as to the number of hours spent by any of the attorneys in preparation for trial, nor is there any testimony or evidence as to the amount of work that any of the attorneys specifically performed. The expert testimony of Mr. Whittaker was couched in generalities in answering hypothetical questions concerning eminent domain and condemnation proceedings.

The Supreme Court held in Baruch v. Giblin, 122 Fla. 59, 164 So. 831, 833:

'The testimony of duly qualified witnesses given as expert opinion evidence is admissible, and may be offered in support of the issue as to the value of the services of an attorney, though such issues may be proven by other evidence and other circumstances affecting it. The rule is generally approved that while expert testimony is strongly persuasive as to the value of an attorney's services it is not conclusive, neither is it binding on the court or the jury. Such evidence should be weighed with reference to the nature of the services, the time consumed in their performance, and other incidents peculiar to the case in which it was performed.'

Numerous elements enter into the determination of the reasonableness of attorneys' fees. The jury can consider the service performed, the responsibility undertaken, the nature of the service, the degree of skill, the amount of time involved, and the importance and results of the litigation. Subjectively speaking, 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. Folmar v. Davis, Fla.App.1959, 108 So.2d 772.

The testimony of an expert witness is to aid and assist in...