Stewart Select Cars, Inc. v. Moore

• Decision Date: 09 June 1993
• Docket Number: No. 91-1687,91-1687
• Citation: Stewart Select Cars, Inc. v. Moore, 619 So.2d 1037 (Fla. App. 1993)
• Parties: 18 Fla. L. Week. D1410 STEWART SELECT CARS, INC., and Stewart Pontiac Company, Appellants, v. Tony MOORE and Donna Ashley, Appellees.
• Court: Florida District Court of Appeals

Page 1037

619 So.2d 1037

18 Fla. L. Week. D1410

STEWART SELECT CARS, INC., and Stewart Pontiac Company, Appellants, v. Tony MOORE and Donna Ashley, Appellees.

No. 91-1687.

District Court of Appeal of Florida Fourth District.

June 9, 1993.

Rehearing Denied Aug. 12, 1993.

Peter M. Feaman of Parker, Johnson, Anderson, McGuire & Michard, P.A., withdrawn as counsel after oral argument, James D. Adams, Boca Raton, and Arnstein & Lehr, West Palm Beach, for appellants.

David C. Wiitala of McManus, Wiitala & Contole, P.A., North Palm Beach, and Raymond G. Ingalsbe of Raymond G. Ingalsbe, P.A., Palm Beach Gardens, for appellees.

PER CURIAM.

This is an appeal from a final judgment awarding attorney's fees to Raymond G. Ingalsbe, P.A., the attorney for appellees, ¹ pursuant to section 501.2105, Florida Statutes (1989).

The case, which commenced as an action for damages brought by appellees, against Stewart Select Cars, Inc. and Stewart Pontiac Company, resulted in a jury verdict and judgment for $9,210.16 in favor of appellees. Thereafter, upon motion the trial court held an evidentiary hearing and awarded attorney's fees of $75,000.00 to appellees' counsel, pursuant to the aforesaid statute. The latter judgment for fees is the only judgment being appealed.

Factually the case arose out of a scenario involving appellees' purchase of an automobile from appellants in the regular course of appellants' business. Suffice it to say that as a result of the way in which they were treated by appellants appellees commenced this suit. The amended complaint which appellees filed contains six counts alleging deceptive and unfair trade practices fraud and deceit, breach of warranties, revocation of acceptance/rejection of nonconforming goods, violation of the truth in lending act, and violation of the Florida Motor Vehicle Sales Finance Act. A directed verdict was suffered by appellees on one count and another count was withdrawn. Four counts went to the jury and each of the parties prevailed on two counts. Judgment was entered for appellees on the counts for deceptive and unfair trade practices and for violation of the Florida Motor Vehicle Sales Finance Act in the total amount of $9,210.16.

Thereafter, appellees moved for the assessment of prevailing party attorney's fees pursuant to sections 501.2105 and 520.12(2). At an evidentiary hearing, evidence was adduced which showed that appellees' counsel had spent 284.5 hours on the preparation and prosecution of appellees' case and that said counsel had a totally contingent fee contract. Appellees' witness testified that the type of litigation was somewhat novel, complex and involved difficult questions which would make it difficult to obtain local counsel on a contingent basis; that the number of hours spent was justified; and that a reasonable rate per hour for a board certified lawyer as plaintiff's counsel was $250.00-$300.00 per hour. Proof was also presented by appellees that a reasonable fee for counsel's services was $112,000.00.

The thrust of appellants' defense was that the amount involved in the case was not significant because the out-of-pocket expenses were around $1,200.00, and that appellants tried to settle the case early on but could not get a figure from plaintiffs' counsel until after many requests therefor. Finally, appellees offered to settle for $50,000.00. Appellants strongly contend that plaintiffs' counsel overtried the case in order to build up the attorney's fees that plaintiffs would recover if they prevailed in this consumer litigation. One of appellants' witnesses testified that, based upon a time frame needed to prosecute the case, 160 hours would have been reasonable as would $150.00 per hour which would total $24,000.00. However, said witness even reduced that amount to $12,000.00 for this case based upon the result obtained.

Since the case is to be reversed for further consideration of attorney's fees we take no definitive position on the foregoing question but suggest the trial court consider this court's recent decision in Ziontz v. Ocean Trail Unit Owners Ass'n, 18 Fla.L. Weekly D1146, 1993 WL 140126 (Fla. 4th DCA May 5, 1993) and Miller v. First American Bank and Trust, 607 So.2d 483 (Fla. 4th DCA 1993) in making the ultimate determination of the proper amount of attorney's fees to be awarded.

Appellant also attacks the award of attorney's fees because the trial court used a contingent fee multiplier of 1.5 in arriving at the amount thereof. It is appellant's contention that this case is not appropriate for application of the contingency risk multiplier provided in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). We agree because the primary statute relied upon herein for recovery of attorney's fees is section 501.2105, Florida Statutes (1989) which provides a reasonable attorney fee for the prevailing party "for the hours actually spent on the case." Under these circumstances the Rowe contingency risk multiplier is inappropriate. This question has been settled by the Supreme Court of Florida in Schick v. Department of Agriculture and Consumer Services, 599 So.2d 641 (Fla.1992) wherein it held:

[T]hat where the legislature has set...