LaFerney v. Scott Smith Oldsmobile, Inc., 81-331

• Decision Date: 03 February 1982
• Docket Number: No. 81-331,81-331
• Citation: LaFerney v. Scott Smith Oldsmobile, Inc., 410 So.2d 534 (Fla. App. 1982)
• Parties: J. L. LaFERNEY, Appellant, v. SCOTT SMITH OLDSMOBILE, INC., Appellee.
• Court: Florida District Court of Appeals

Page 534

410 So.2d 534

J. L. LaFERNEY, Appellant, v. SCOTT SMITH OLDSMOBILE, INC., Appellee.

No. 81-331.

District Court of Appeal of Florida, Fifth District.

Feb. 3, 1982.

Rehearing Denied March 1, 1982.

Elsie T. Apthorp and Jack B. Nichols of Jack B. Nichols, P.A., Orlando, for appellant.

Jeffrey C. Fulford of Adams & Hill, Orlando, for appellee.

SHARP, Judge.

Based on the record before this court, we think the trial court abused its discretion in failing to award a reasonable attorney fee pursuant to section 501.2105, Florida Statutes (1979), for the service rendered by counsel to J. L. LaFerney in its suit against Scott Smith Oldsmobile, Inc. Marchion Terrazzo, Inc. v. Altman, 372 So.2d 512 (Fla.3d DCA 1979). The appellee did not challenge the reasonableness of the number of hours spent on the case by appellant's attorney before the trial court. Appellee offered no expert witness or testimony of his own to show appellant's hours were unreasonable, and in fact, he admitted his own hours in the case were 60.25 hours. Considering the outcome of the case, and the greater effort usually required by representing a plaintiff as opposed to a defendant, the appellant's 90.5 hours ¹ do not appear excessive. The appellee's primary attack on the fee award was that appellant had not allocated his time records to show specifically only his work on the deceptive trade practice count.

The appellant filed a five-count complaint against Scott Smith. The first count alleged that appellee had committed a deceptive trade practice under Chapter 501 by breaching its contract to sell to appellant a diesel automobile, refusing to return appellant's two hundred dollar ($200.00) deposit, and making various deceptive and false statements to appellant. All of the other four counts were based on the same basic facts and transactions, restated in other theories or forms of causes of action: Count II-breach of sales contract under the UCC; Count III-conversion; Count IV-common law breach of contract; Count V-fraud. Early in the pleading stage of this litigation the court dismissed the UCC count and the conversion count. After a non-jury trial, the court found in appellant's favor on the deceptive trade practice and common law breach of contract counts, and for appellee on the fraud count because appellant failed to prove intent to deceive on the part of appellee when the contract was entered into.

Pursuant to section 501.2105, counsel for appellant filed an affidavit showing his law firm had expended 107.1 hours ² on the case. Another attorney testified from an examination of the time records and the file that eight thousand twenty-five dollars ($8,025) would be a reasonable attorney fee in this case. He reached this opinion by multiplying seventy-five dollars ($75.00) per hour times one hundred seven and one-tenth hours (107.1). He also said the deceptive trade practice aspects presented some unusual and difficult legal issues. No counter-affidavits or opposing testimony was offered by appellee.

On cross-examination appellee attacked both appellant's counsel and his expert witness on the ground they had failed to allocate what part of the lawyer hours were attributable to the deceptive trade practice claim as opposed to the others. Both testified that the causes of action were so interwoven and intermingled, since they were based on the same facts or transactions, they could not separate out the time for count one alone. This testimony was also not countered by appellee. Counsel for appellant said he estimated only ten percent (10%) to fifteen percent (15%) of the time was related to matters not dealing with count one. When pressed as to how he arrived at that estimate, the attorney said (although he disputes he said it "on the record") it was "by guess and by golly." The trial court said it could not base an award of attorney's fees on "guessing," so he would allow only one-fifth (1/5) of the fee amount for attorney's fees since there was originally a five-count complaint filed in the case.

Appellee argues the appellant had the burden of maintaining time records which specifically allocated effort spent on count one as opposed to the others. In United Services Automobile Association v. Kiibler, 364 So.2d 57 (Fla.3d DCA 1978), the court held an attorney's fee award could only be allowed on the "coverage" issue as opposed to the "liability" issue under section 627.428, and reversed and remanded the award for failure to make that allocation. Similarly in Hamilton v. Palm Chevrolet-Oldsmobile, Inc., 388 So.2d 638 (Fla.2d DCA 1980), the court reversed an attorney fee award under section 501.2105 because it included time spent on a punitive damage claim, which is outside the scope of Chapter 501.

However, in this case, the testimony and the pleadings themselves show there was really only one transaction or set of facts which gave rise to all five "theories" in the complaint; and in proving the deceptive trade practice, the appellant also proved part of the fraud count and all of the breach of contract count. As appellant points out, proof of a deceptive trade practice under Chapter...