Nants v. Griffin

• Decision Date: 04 May 2001
• Docket Number: No. 5D00-342.,5D00-342.
• Citation: 783 So. 2d 363
• Parties: Cynthia F. NANTS and Bruce A. Nants, etc., Appellants, v. Geraldine GRIFFIN and State Farm Insurance, etc., Appellee.
• Court: Florida District Court of Appeals

783 So.2d 363

Cynthia F. NANTS and Bruce A. Nants, etc., Appellants, v.Geraldine GRIFFIN and State Farm Insurance, etc., Appellee.

No. 5D00-342.

District Court of Appeal of Florida, Fifth District.

May 4, 2001.

R. Lee Dorough, Orlando, for Appellants.

Elizabeth C. Wheeler of Wheeler & Wilkinson, LLP, Orlando, for Appellee.

PETERSON, J.

Cynthia and Bruce Nants appeal a final judgment awarding attorney's fees to Geraldine Griffin.Attorney's fees were awardable pursuant to section 768.79(6)(a), Florida Statutes(1997) because Griffin made an offer of judgment of $101 during the litigation and the jury entered its verdict for Griffin after determining that she was not the legal cause of Nants' alleged injuries.

An evidentiary hearing was held on Griffin's subsequent motion for costs and fees.Griffin's trial attorney, Christopher Reed, was no longer with the law firm that Griffin selected to represent her and George Stark, Reed's supervisor, represented Griffin at the hearing.

Stark testified that he was Reed's supervisor.He identified his firm's billing records and placed them into evidence as business records.He also testified that he had reviewed all of the time records and reduced the total time by 32.9 hours after considering those hours excessive.This reduced the number of hours to 152.9.An expert witness also testified that after reviewing the firm's file, 130-150 hours was a reasonable time to be spent on the defense and that $115 per hour was a reasonable rate.The court awarded $15,000 (130 hours @ $115 per hour) plus one hour of paralegal services at $50 per hour.

Nants contends that the award of attorney's fees was erroneous because the trial court's conclusion that the offer of judgment was made in good faith was not supported by substantial and competent evidence.The question to be considered by the court in determining if an offer of judgment was made in good faith is whether the offer or proposal bears a reasonable relationship to the amount of damages suffered and was a realistic assessment of liability.SeeEvans v. Piotraczk,724 So.2d 1210, 1211(Fla. 5th DCA1998).The offer need not equate with the total amount of damages that might be at issue.Seeid.Moreover, a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal.Seeid. at 1020;see alsoDeltona House Rentals, Inc. v. Cloer,734 So.2d 586, 588(Fla. 5th DCA1999);Weesner v. United Servs. Auto. Assoc.,711 So.2d 1192, 1194(Fla. 5th DCA1998);State Farm Mut. Auto. Ins. Co. v. Marko,695 So.2d 874(Fla. 2d DCA1997).

In this case, the attorneys for Griffin and State Farm, the uninsured motorist carrier, stated that the information initially supplied by Nants prior to the offers of judgment indicated questionable liability.The information included photographs of the minimal damage to Nants' vehicle, a property damage estimate, an accident report showing that there were no reported injuries at the scene, medical reports showing no permanent injury, and only $2,000 in unpaid medical bills, which were the potential responsibility of State Farm, not Griffin.¹Furthermore, Griffin's offer of judgment was made almost two years after suit was commenced, discovery had been taken, and IME's had been obtained.Notwithstanding, Nants maintains without citations of authority that Griffin had to submit either Reed's testimony or the testimony of the person who decided to make the offer of judgment to demonstrate that the offer was made in good faith.The trial court disagreed and allowed alternative methods of proof.The court had the medical records in the court file and indicated that it remembered and was familiar with the case.Further, State Farm's attorney testified that Nants' attorney had informed him that this was not an uninsured motorist case, a witness's deposition indicated that no one was injured at the scene, and there was minimal damage to the automobile.Also, Nants' attorney admitted that Griffin had the results of the IME's at the time the offer was made.Considering this evidence, the trial court concluded that Griffin's offer was made in good faith.We find substantial and competent evidence supports the trial court's decision.

Nants also claims that there was insufficient evidence to support the reasonableness of the amount of the fees and the trial court improperly relied on affidavits to determine reasonableness.Although a court's reliance solely on affidavits to determine the reasonableness of attorney's fee constitutes error,² review of the record indicates that the trial court stated that it was not going to consider the affidavits.The trial court merely had the affidavits placed into the court file and declared that the affidavits were not being considered.The oral findings of the trial court clearly reflects the court's consideration of all the relevant factors enumerated in Florida Patient's Compensation Fund v. Rowe,472 So.2d 1145, 1150(Fla.1985),modified by, Standard Guar. Ins. Co. v. Quanstrom,555 So.2d 828(Fla.1990), in making its determination.

To support a fee award, there must be evidence detailing the services performed and expert testimony as to the reasonableness of the fee.SeeSaussy v. Saussy,560 So.2d 1385, 1386(Fla. 2d DCA1990).The applicant should present records detailing the amount of work performed and the time to perform each task.SeeRowe,472 So.2d at 1150."Inadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary."Id.Expert testimony is required to determine both the reasonableness of the hours and a reasonable hourly rate.SeeMarkham v. Markham,485 So.2d 1299, 1301(Fla. 5th DCA1986).However, the attorney performing the work is not required to testify when there is competent evidence filed in support of...