IN RE FLORCAR, INC.

• Decision Date: 18 January 1982
• Docket Number: Adv. No. 81-0512-BKC-TCB-A.,Bankruptcy No. 81-00471-BKC-TCB,81-00473-BKC-TCB
• Citation: 16 BR 726
• Parties: In re FLORCAR, INC., Carnie Investments, Inc., Debtors. The NINE-EIGHT CORPORATION and Palermo Realty, Inc., Plaintiffs, v. CARNIE INVESTMENTS, INC. Florcar, Inc. and Irving Gennet, Trustee, Defendants.
• Court: U.S. Bankruptcy Court — Southern District of Florida

16 B.R. 726 (1982)

In re FLORCAR, INC., Carnie Investments, Inc., DebtorsThe NINE-EIGHT CORPORATION and Palermo Realty, Inc., Plaintiffs, v.CARNIE INVESTMENTS, INC. Florcar, Inc. and Irving Gennet, Trustee, Defendants.

Bankruptcy Nos. 81-00471-BKC-TCB, 81-00473-BKC-TCB, Adv. No. 81-0512-BKC-TCB-A.

United States Bankruptcy Court, S.D. Florida.

January 18, 1982.

Arthur Weitzner, Coral Gables, Fla., for defendants.

Daniel Bakst, West Palm Beach, Fla., for trustee.

Norman L. Schroeder, Lake Worth, Fla., for Palermo Realty, Inc.

Eugene J. Fierro, Coral Gables, Fla., for counterplaintiff.

L. Louis Mrachek, J.A. Plisco, Palm Beach, Fla., for plaintiff.

MEMORANDUM DECISION—AMOUNT OF ATTORNEYS' FEES

THOMAS C. BRITTON, Bankruptcy Judge.

In a memorandum decision of December 8, 1981, defendants' liability to the plaintiff, Nine-Eight Corporation, for attorneys' fees was fixed.(C.P. No. 23).At the parties' request, a separate hearing was held on December 15 to consider the amount.Nine-Eight Corporation seeks $9,687 and costs of $728 for the services of L. Louis Mrachek and $16,465 and costs of $443 for the services of J.A. Plisco, or a total of $27,323.

The liability for fees in this instance is contractual.In a Partial Assumption Agreement of July 18, 1980, the defendants agreed to pay:

"(5) . . . reasonable attorneys fees and costs incurred by Buyers . . . as a result of any default in said note or mortgage caused by Seller . . . "

and

(14) . . . in any dispute between the parties involving this Agreement, the prevailing party shall be entitled to attorney fees and costs."

The matter is governed by Florida law where it is settled that a trial court may not, over objection, award fees in the absence of expert testimony.Lee v. Gilbert, Silverstein & Hellman,Fla.App.1977, 350 So.2d 1147.Expert testimony is not necessary in this court.Matter of First Colonial Corp. of America,5 Cir.1977, 544 F.2d 1291, 1300.In this case, the parties agreed that plaintiffs could submit their proof by detailed applications without expert testimony and defendants offered only argument in opposition.Expert testimony is not a jurisdictional prerequisite.In re Estate of Buchman,Fla.App.1972, 270 So.2d 384, 385.

In Florida, a party contractually entitled to his attorney fees recovers the amount he must pay his lawyer, or the reasonable fee, whichever is less.Trustees of Cameron-Brown v. Tavormina,Fla.App.1980, 385 So.2d 728, 731.In this instance, Nine-Eight Corporation agreed to pay its attorneys on an hourly basis $125 for Mrachek and $100 for Plisco ($125 for out of office time).The attorneys have already been paid $14,080 for their services, $2,500 for Mrachek and $11,580 for Plisco, plus $507 costs.

The factors to be considered in assessing fees are specified in the Florida Code of Professional Responsibility, DR2-106(B).The parties offered no proof as to four of the eight factors: (2), (5), (6) and (7).I assume that these factors are not significant in this instance.The remaining four factors are (1) the time, the difficulty and the skill required, (3) customary charges in the area, (4) the amount and results involved, and (8) whether the fee is fixed or contingent.There was no contingency here.The remaining factors are considered below.

Mrachek was employed in April, 1981, solely for representation in this court.In October, he filed this action to determine title.On the eve of trial in November, defendants capitulated except as to the recovery of fees.He prevailed in that issue as well.The five months that intervened between the time he had his complaint ready and the time it was filed was due, I suppose, to efforts to settle the matter.The property in question is worth well over $1 million.Though there is no evidence of the value of Nine-Eight's equity, I assume it is substantial.Mrachek did an excellent job.I cannot assess its novelty or difficulty, because the issues were settled, but I assume it required the time he spent on it.His hourly rate, though on the high side, is not so clearly unreasonable as to be disregarded.

His records, which are complete, reflect 78 chargeable hours.This includes 19.6 hours spent conferring with Plisco who initially represented Nine-Eight and 11 hours travel between Miami,...