Georgia-Pacific Corp. v. DeLoach, GEORGIA-PACIFIC

• Decision Date: 21 August 1992
• Docket Number: No. 91-3119,GEORGIA-PACIFIC,91-3119
• Citation: 603 So.2d 702
• Parties: CORPORATION, (formerly Owens-Illinois), Appellant/Cross-Appellee, v. Richard DeLOACH, Appellee/Cross-Appellant. 603 So.2d 702, 17 Fla. L. Week. D1972
• Court: Florida District Court of Appeals

Page 702

603 So.2d 702

GEORGIA-PACIFIC CORPORATION, (formerly Owens-Illinois) Appellant/Cross-Appellee, v. Richard DeLOACH, Appellee/Cross-Appellant.

No. 91-3119.

603 So.2d 702, 17 Fla. L. Week. D1972

District Court of Appeal of Florida First District.

Aug. 21, 1992.

M. Mitchell Newman of Gluckman & Newman, P.A., Tampa, for appellant/cross-appellee.

Edward H. Hurt, Sr., Orlando; Bill McCabe, Longwood, for appellee/cross-appellant.

WEBSTER, Judge.

In this workers' compensation appeal, the self-insured employer seeks review of the amount of attorney fees it was ordered to pay to claimant's attorney. By cross appeal, claimant argues that the award of attorney fees should have been greater than it was. We conclude that the cross appeal is so totally devoid of merit as to border on the frivolous and, therefore, affirm without discussion as to the issues raised thereby. We conclude, further, that the employer correctly asserts that claimant's attorney waived any claim he might otherwise have had to a fee for certain of the services he performed; and that there is no competent evidence to support the amount of the fee awarded for the remaining services. Therefore, we reverse as to the issues raised by the appeal.

In March 1984, claimant sustained a work-related injury when he hit his neck on a piece of machinery. Claimant sustained a second work-related injury in April 1986, when he slipped, injuring his knee. Claimant retained his present attorney in October 1986.

The first record activity reflected as having been undertaken by claimant's attorney is a Motion for Appointment of Physician, filed on November 26, 1986. It requests merely that an order be entered requiring the employer "to authorize Dr. Richard Merritt for care and treatment of the claimant." It does not request an award of attorney fees. The Motion was followed by a Claim for Benefits, filed on December 15, 1986, which sought "[t]emporary total disability benefits and/or temporary partial disability benefits at the proper average weekly wage from the date of accident to present and continuing, costs, interest, penalties and attorney's fees."

On March 26, 1987, an order was entered granting the Motion for Appointment of Physician and directing the employer to provide continued chiropractic care by Dr. Richard Merritt, and continued medical care by Dr. William Earp. No mention is made in that order regarding attorney fees. Specifically, jurisdiction was not reserved to award a fee at a later date.

On August 6, 1987, another order was entered. It recited that the parties had stipulated "that on March 14, 1984 and April 24, 1986 the claimant sustained an injury by accident arising out of the course of his employment with the employer"; that proper notice of the accident had been given; "that claimant's average weekly wage was $570.33 ..., plus the value of group insurance which [has been] provided for the claimant since the accident by the employer leaving a corresponding compensation rate of $315.00"; and that "claimant was temporarily totally disabled from March 13, 1987 to the date of the Hearing." The employer was ordered to pay claimant "temporary total disability and or temporary partial disability benefits from April 24, 1986 to the present predicated upon an average weekly wage of $570.33"; "Dr. Merritt's bills for his care and treatment of the claimant"; and costs. The order also provided that claimant was to "remain under the care and treatment of Dr. Merritt and Dr. Earp." In addition, jurisdiction was "reserved to determine the issue of attorney's fees due the claimant's attorney."

Additional Claims for Benefits were filed on October 9 and December 2, 1987. The former requested "payment of all incurred medical bills, costs, interest, attorney's fees [and] penalties." The latter requested temporary total disability benefits at the proper compensation rate from May 16 to June 1, and from June 13 to September 15, 1986; temporary partial disability benefits at the proper compensation rate from June 2 to 12, 1986; benefits for any other periods of temporary total or temporary partial disability as to which benefits had not been paid at the proper compensation rate; and payment of mileage incurred, costs, interest, penalties and attorney fees. On March 23, 1988, an order was entered awarding claimant temporary partial disability benefits, based upon a compensation rate of $315.00, from June 2 to June 13, 1986, and December 29, 1986, to March 15, 1987; and temporary total disability benefits, based upon the same compensation rate, from September 10 to December 17, 1987; directing the employer to pay costs; and reserving jurisdiction "to determine the issue of attorney's fees due the claimant's attorney."

The record reflects the filing of a further Claim for Benefits on February 27, 1990. It sought a determination of claimant's proper average weekly wage and rate of compensation as a result of insurance benefits having been cancelled on February 13, 1989; and costs, interest, penalties and attorney fees. That claim was amended on March 2, 1990, to include a request for interest and penalties attributable to late payments of temporary partial disability benefits since January 1, 1989; and again on June 29, 1990, to include a request for wage loss benefits from April 16 to May 15, 1990. However, the record does not reflect what ruling, if any, was made regarding that claim.

On April 1, 1991, claimant filed his claim seeking attorney fees and costs. A hearing was held on the request for attorney fees on August 15, 1991. At that time, the parties agreed that claimant's attorney was entitled to a fee, the only question being the appropriate amount. The parties also agreed that the 1985 version of the fee statute (Section 440.34, Florida Statutes) could be used for both the 1984 and the 1986 injuries, because it had not been amended during the relevant period.

The petition by which claimant's attorney requested a fee for his services asserted (among other things) that the attorney had devoted approximately 361 hours to representation of claimant; that the issues involved had been difficult; that the hourly rate customarily charged in the locality for similar services was $250.00; and that the attorney had been responsible for securing benefits for claimant having a value of approximately $75,000.00. The petition was accompanied by an affidavit in which the attorney purported to provide a detailed breakdown of the time actually devoted by him to representation of claimant.

However, at the hearing, the attorney conceded that he had kept no time records concerning the representation for which he was seeking a fee; that the affidavit, including the time attributed to each activity, had been prepared primarily by his office staff; that certain of the time values ascribed to activities were nothing more than guesses; that some of the entries were duplicative; and that, although reflected on the affidavit as time devoted by the attorney, many of the time entries actually reflected time devoted by secretaries (of whom the attorney testified he had 23), office runners or other nonprofessional personnel. In short, it was apparent that the time affidavit was so riddled with inaccuracies, guesswork and misrepresentations as to be of absolutely no evidentiary value.

Finally, the judge became so exasperated with the attorney's inability to testify with any degree of certainty regarding the number of attorney hours devoted to the representation that he announced a recess, directing the parties to return with their "best expert opinion[s]" regarding that number. The attorney then told the judge that he believed that "about the best [he could] do" was say that he had at least as many attorney hours devoted to the representation as had been expended by the employer's prior counsel, i.e., 181. Almost as soon as he had made that statement, however, the attorney receded from it, saying that he could not even make that statement in good faith. After the recess, the attorney testified that, in his opinion, the number of attorney hours devoted to the representation had actually been approximately one-third less than his initial estimate, or approximately 227. However, the attorney was unable to offer any objective basis for this estimate.

The attorney testified that he had been practising since 1949, and that he had handled 5,000 or 6,000 workers' compensation cases during his career. He said that he had determined that $250.00 was a reasonable hourly rate in the locality (which was not where his office was situated) for services similar to those he had provided by speaking to two local attorneys, who told him that the range for attorney fees was between $200.00 and $350.00 per hour.

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