Winn-Dixie Stores, Inc. v. Reddick

Decision Date26 April 2007
Docket NumberNo. 1D04-4340.,1D04-4340.
Citation954 So.2d 723
PartiesWINN-DIXIE STORES, INC., Appellant, v. David A. REDDICK & James A. Stokes, Appellees.
CourtFlorida District Court of Appeals

Edward H. Trent and Richard N. Margulies of Akerman Senterfitt, Jacksonville, Eric J. Holshouser, Coffman, Coleman, Andrews & Grogan, P.A., Jacksonville, for Appellant.

T.A. "Tad" Delegal, III, and Shawntoyia Grier, Delegal Law Offices, P.A., Jacksonville, Kendra D. Presswood, Presswood Law Firm, P.A., Holmes Beach, for Appellees.

OPINION ON MOTION FOR REHEARING, CERTIFICATION, AND REHEARING EN BANC

HAWKES, J.

We deny appellee's motion for rehearing, certification, and rehearing en banc. However, this Court, sua sponte, withdraws its previous opinion, and substitutes this opinion in its place. See City of Cooper City/Florida Mun. Ins. Trust/Florida League of Cities v. Farthing, 905 So.2d 925, 926 (Fla. 1st DCA 2005) (withdrawing an opinion and reconsidering its merits upon this Court's own motion).

Appellant appeals the trial court's order awarding appellees attorney's fees and costs associated with their lower court action for employment discrimination, which was filed pursuant to the Florida Civil Rights Act of 1992 (FCRA), as amended. See §§ 760.01-760.11, Fla. Stat. On appeal, appellant presents three arguments for reversal. First, appellant argues that the trial court erred by awarding a contingency fee multiplier, because such an award is not permitted under the FCRA. Second, appellant argues that the trial court erred by taxing costs beyond those provided for in the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. Third, appellant argues that the trial court erred in calculating a "reasonable attorney's fee" in this case. In response, appellees have filed a cross-appeal challenging the trial court's denial of their request for attorney's fees for time spent litigating their entitlement to attorney's fees under the FCRA.

We find no merit in appellant's third point on appeal, except to the extent expressed in our discussion of the costs issue. Therefore, we affirm as to appellant's challenge to the trial court's calculation of a reasonable attorney's fee without comment. However, because we find merit in appellant's first and second arguments on appeal and appellees' only point on cross-appeal, we reverse and remand for further proceedings.

Facts

In the underlying discrimination suit, appellees alleged that they were demoted and later terminated as a result of age discrimination. Alternatively, appellees alleged that they were fired in retaliation for reporting an incident of sexual harassment and/or for questioning whether their demotions were related to age discrimination. Following a two week jury trial, appellees were successful on some of their claims and were awarded a total of $700,000 in economic damages and $100,000 in punitive damages.

Upon completion of the trial, appellees moved for attorney's fees, costs, and the award of a contingency fee multiplier. Appellees requested $229,856.12 in attorney's fees and $65,305.24 in costs. This costs figure included requests for items such as postage, travel fees, office expenses, computerized research, photocopies, expert fees, and mock trials. An evidentiary hearing was held to determine the appropriate amount of attorney's fees and costs to be awarded.

Three Jacksonville attorneys testified during the evidentiary hearing. These attorneys were all accepted by the trial court as experts. In sum, the testimony of these three attorneys established that whether this case is reviewed as a category one or category two case, as those categories have been established pursuant to Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 833 (Fla.1990), a contingency fee multiplier was appropriate.

After considering all the evidence, the trial court granted appellees attorney's fees of $191,513.79 as well as a multiplier of 2.0. In reaching the $191,513.79 figure, the trial court reduced the requested fee award ($229,856.12) by $10,983.22, because the requested fee included fees connected to time spent litigating appellees' entitlement to fees. The trial court also reduced the calculated lodestar ($218,872.90) by 12.5 percent to account for time spent litigating unsuccessful claims. However, due to the award of a multiplier, the attorney's fees actually awarded were $383,027.58. Regarding the costs issue, the trial court found that not all of the costs requested by appellees were permitted under the Statewide Uniform Guidelines For Taxation of Costs in Civil Actions. Accordingly, the trial court reduced the $65,305.24, requested in costs, by 12.5 percent and awarded $57,142.09 in costs.

The Florida Civil Rights Act Does Not Permit the Award of Contingency Fee Multipliers

The key challenge presented by the E/C relates to whether the FCRA permits the award of a multiplier. A review of the pertinent law leads us to conclude that contingency fee multipliers are not permitted under the FCRA. As this issue deals with the construction of section 760.11(5), Florida Statutes, it is reviewed by this Court de novo. See Agency for Health Care Admin. v. HHCI Ltd. P'ship, 865 So.2d 593, 595 (Fla. 1st DCA 2004) (holding that the application of undisputed facts to a statute allowing for the award of attorney's fees is reviewed de novo).

Section 760.11(5), Florida Statutes, specifically states that "[i]n any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the costs." This subsection is the statutory authority, relied upon by the trial court, for awarding appellees attorney's fees in this case. However, in the sentence immediately following the statutory grant of authority to award attorney's fees, the statute states, "[i]t is the intent of the Legislature that this provision for attorney's fees be interpreted in a manner consistent with federal case law involving a Title VII action." § 760.11(5), Fla. Stat. (1992). This statutory statement of legislative intent clearly and unambiguously requires that Florida courts conform their rulings respecting the award of attorney's fees, under this section, to federal case law interpretations of Title VII attorney's fees actions.

The amendment adding this statement of legislative intent was signed into law on June 17, 1992. See Ch. 92-282, Laws of Fla. Seven days after this language was added to the FCRA, the United States Supreme Court decided Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), which effectively held that fee multipliers could not be awarded in cases involving federal fee shifting statutes. Subsequent to the Dague decision, the Eleventh Circuit held that under no circumstances were contingency fee multipliers permissible under Title VII. McKenzie v. Cooper, Levins, & Pastko, Inc., 990 F.2d 1183, 1186 (11th Cir.1993).

Prior to Dague, it was unsettled whether contingency fee multipliers could be awarded in connection with federal fee shifting statutes. During this pre-Dague period, the Eleventh Circuit had ruled that an enhancement over and above the "lodestar" may be awarded in Title VII actions to compensate attorneys for the risk of accepting a case on a contingency basis and to attract competent counsel. See Richardson v. Alabama State Bd. of Ed., 935 F.2d 1240, 1248 (11th Cir.1991).1 However, in King v. Palmer, 950 F.2d 771, 784 (D.C.Cir.1991), the D.C. Circuit, en banc, specifically held that "that contingency enhancements will not be available in this Circuit." While it is clear that federal circuits generally accepted the applicability of contingency fee multipliers in Title VII actions at the time the FCRA was amended, not every circuit had accepted contingency fee multipliers as appropriate.

On appeal, appellees, unconvincingly, argue that federal decisional law post-dating the legislature's amendment of the FCRA is not binding authority when interpreting the FCRA. There are two reasons why appellees' argument on this point must fail. First, the plain language of the statute unambiguously calls for Florida courts to interpret the attorney's fees provision of this statute in conformity with federal case law under Title VII. See Atlantis at Perdido Ass'n, Inc. v. Warner, 932 So.2d 1206, 1212-13 (Fla. 1st DCA 2006) ("[T]his court is without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.") (internal citations and quotations omitted). Second, even if the language of the statute is found to be ambiguous as to whether it was intended only to incorporate case law pre-dating the amendment, the legislative intent language of the amendment would be rendered meaningless by the interpretation appellees forward. Koile v. State, 934 So.2d 1226, 1233 (Fla.2006) (noting that "courts should avoid readings that would render part of a statute meaningless").

The plain language of the legislative intent phrase does not, by its own terms, limit its application to "federal case law" decided prior to the enactment of the amendment. Neither does its language suggest any preferred result with respect to the appropriateness of contingency fee multipliers. Clearly, the legislature was aware that federal case law interpreting Title VII attorney's fees actions would be decided after the statute was amended. Had the legislature wished to limit the application of this language to case law pre-dating the amendment, it could have easily said so. Accordingly, the most logical reading of the statute mandates that the attorney's fees provision of the statute be interpreted in conformity with federal case law irrespective of whether the case law "pre" or "post" dates this amendment.

Assuming, arguendo, that there is some ambiguity...

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