McCarthy Bros. Co. v. Tilbury Const., Inc., No. 01-4210

• Decision Date: 10 March 2003
• Docket Number: No. 01-4210, No. 1D02-0759.
• Citation: 849 So.2d 7
• Parties: McCARTHY BROTHERS COMPANY, Appellant, v. TILBURY CONSTRUCTION, INC., and Nobel Insurance Company, Appellees.
• Court: Florida District Court of Appeals

849 So.2d 7

McCARTHY BROTHERS COMPANY, Appellant, v. TILBURY CONSTRUCTION, INC., and Nobel Insurance Company, Appellees.

Nos. 01-4210, 1D02-0759.

District Court of Appeal of Florida, First District.

March 10, 2003.

Rehearing Denied April 22, 2003.

John R. Hamilton of Foley & Lardner, Orlando, and Thomas F. Munro, II, of Foley & Lardner, West Palm Beach, for Appellant.

James G. Etheredge of James G. Etheredge, Chartered, Fort Walton Beach, and Robert A. Bauman and Robert E. Morris of Robert E. Morris, P.A., Tampa, for Appellees.

HAWKES, J.

In these consolidated appeals,¹ McCarthy Brothers Company (McCarthy) appeals a jury verdict in favor of Tilbury Construction, Inc. (Tilbury), and an award of attorney's fees to both Tilbury and Nobel Insurance Company (Nobel). Nobel cross-appealed. McCarthy argues the trial court erred by: (1) refusing to grant McCarthy's post-trial motion for remittitur or a new trial; (2) using a 2.5 multiplier in calculating the attorney's fee award to Tilbury; (3) granting attorney's fees to Nobel; (4) denying a special verdict form; and (5) its choice of the date from which it calculated an award of prejudgment interest. On cross-appeal, Nobel argues the trial court erred by limiting Nobel's costs and fees recovery to taxable costs only. We find Noble's argument on cross-appeal without merit. We affirm McCarthy's claims (4) and (5) without discussion. We agree with claims (1) through (3), and reverse and remand with instructions.

I.

In late 1994, McCarthy, as general contractor on a condominium project, entered into a $651,673.00 subcontract with Tilbury ("the subcontract" or "the McCarthy-Tilbury contract") to provide sheet rocking and other services. Tilbury paid a premium to Nobel as surety to insure its performance pursuant to the terms of the subcontract. There was no contractual relationship between McCarthy and Nobel. Under the subcontract, Tilbury agreed to provide the drywall and other work on the condominium project for which McCarthy was the general contractor. However, as McCarthy, the building's owner, and the purchasers of the individual condominium units began ordering changes to the project, the relationship between McCarthy and Tilbury began to sour. During term of the subcontract, two hurricanes damaged the project and set work back several months. In addition to hurricane repairs, change orders continued to come in. Tilbury complained several times about not getting paid for work it had done that was not part of the subcontract. McCarthy, while acknowledging it owed Tilbury for work done on change orders, began complaining Tilbury had insufficient manpower on-site to complete the project.

In May of 1996, McCarthy declared Tilbury in default for insufficient manpower. Tilbury remained on the job site. In June of 1996, Tilbury submitted an invoice for over $196,000.00, which was based on hurricane repairs, change orders, and retainage. Five days after receiving the invoice, McCarthy again declared Tilbury in default for insufficient manpower. Tilbury subsequently amended its invoice total to $192,152.88. Tilbury left the job site and filed suit seeking the $192,152.88. McCarthy counter-claimed for $488,161.63, and filed a third-party complaint against Nobel as surety. At trial, the jury rejected McCarthy's claims and awarded Tilbury $374,709.00. The trial court awarded Tilbury its attorney's fees with a 2.5 multiplier, and awarded Nobel its taxable costs. McCarthy filed a motion for remittitur or new trial, which the trial court denied.

II.

A trial court's ruling on a motion for remittitur is reviewed under an abuse of discretion standard.² At trial, Tilbury offered documentary and testimonial evidence to support the amount of the amended invoice as claimed. Although Tilbury's owner made general assertions during his testimony that Tilbury was owed more than this claimed amount, there was no evidence presented from which a jury could form a reasonable basis to exceed the claim and award $374,709.00. Thus, we find that the jury "misperceived the merits relating to the amounts recoverable," in its attempt to compensate Tilbury for McCarthy's breach by awarding an amount for which there is no reasonable basis in the evidence. Fla. Dep't of Transp. v. Hawkins Bridge Co., 457 So.2d 525, 527 (Fla. 1st DCA 1984) (emphasis in original). A court cannot allow a jury to award a greater amount of damages than what is reasonably supported by the evidence at trial.³ If the jury verdict is excessive, remittitur is an appropriate remedy.⁴ Because the evidence presented at trial indicated the maximum allowable award was $192,155.88, we find the trial court abused its discretion by denying McCarthy's motion for remittitur. Accordingly, we reverse and remand as to this claim. On remand, the trial court shall give Tilbury the opportunity to accept a reduction in the verdict to $192,152.88. If Tilbury declines, "the court shall order a new trial in the cause on the issue of damages only."⁵

III.

McCarthy also challenges the use of a 2.5 multiplier in calculating the attorney's fee award to Tilbury, the award of any attorney's fees to Nobel, and argues reversal in the liability appeal requires a reversal of both attorney's fees judgments entered against it below. We find that reversal of the damages awarded in the liability appeal results in a provisional reversal of the attorney's fees awarded Tilbury. If Tilbury elects to accept the remittitur, then the trial court may reimpose the agreed upon lodestar amount of $88,500.00, but with a 2.0, rather than a 2.5 multiplier.

We find the application of a multiplier appropriate for two reasons. First, Tilbury presented expert testimony that it would have been difficult to find an attorney willing to take its case without the opportunity for a multiplier. Due to the complexity of the case and the relative financial positions of the parties, this point is persuasive. Second, the McCarthy-Tilbury contract specifically provided that the party who recovered at least 75% of its claim would be considered the "prevailing party," and receive attorney's fees and costs from the non-prevailing party. Under this high burden, we find the evidence presented below demonstrated "the likelihood of success was approximately even at the outset."⁶ A 2.5 multiplier is only appropriate where "success was unlikely at the outset of the case." Quanstrom, 555 So.2d at 834. A 2.0 multiplier is appropriate where "the likelihood of success was approximately even at the outset." Id. Accordingly, a 2.0 multiplier was appropriate. The trial court erred in applying a 2.5 multiplier because the evidence did not support a finding that "success was unlikely at the outset of the case." Id.

However, if there is a new trial on damages, McCarthy and Tilbury will be required to revisit the attorney's fees issue in its entirety, pending the outcome of the new trial. Because there are too many possible contingencies, such as a different result on damages or the effect of an offer of judgment pursuant to section 768.79, Florida Statutes, this court will not address the issue.

Finally, we find that Nobel was not entitled to recover any attorney's fees from McCarthy. The reversal of Nobel's attorney's fees judgment is not provisional. At trial, Nobel based its argument for entitlement to attorney's fees on language contained in the McCarthy-Tilbury contract, to which Nobel was not a party. Nobel claimed a contractual right to recover attorney's fees based upon Articles Six and 10.5 of the McCarthy-Tilbury contract. Article Six defines the scope of the risk or coverage to which Tilbury's surety would be exposed if Tilbury defaulted. It provides: "McCarthy shall be paid by the surety any legal and court costs McCarthy incurs in the enforcement of its rights under said bonds." Article 10.5 provides:

The prevailing party in any legal action between the parties relating to this Agreement shall recover from the other party reasonable legal costs,

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