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Category: Post-Judgment Fees / Costs

Florida Supreme Court: No Interest on Attorney Fees

September 9, 2021

A recent Law 360 story by Carolina Bolado, “Fla. High Court Won’t Add Interest To Atty Fee Calculations,” reports that the Florida Supreme Court ruled that prejudgment interest should not be added to a judgment when determining if the judgment triggers a party's entitlement to attorney fees under the state's proposal-for-settlement statute.  In a 5-2 decision, the high court opted to stand by its precedent and found that prejudgment interest accrued after CCM Condominium Association Inc. made a settlement offer to Petri Positive Pest Control Inc. should not be included in the "net judgment" for the purposes of calculating whether CCM can be awarded attorney fees under the statute.

The court relied on its 2002 ruling in White v. Steak & Ale of Florida, which defined the plaintiff's total recovery as including only attorney fees, costs and prejudgment interest accrued up to the date of its settlement offer.  When considered against the text of the offer-of-judgment statute, the White ruling is not clearly erroneous, and the formula set out in that decision has been consistently applied by district courts around the state in the two decades since to exclude amounts that were not present on the date an offer is made, according to the opinion.

"We simply do not have a definite and firm conviction that this court's prior interpretation of the offer of judgment statute and the terms 'judgment,' 'judgment obtained,' and 'net judgment entered' is wrong," the high court said.  The ruling is a win for Petri, which was fighting CCM's attempt to recover attorney fees after prevailing in a dispute over a contract for termite extermination.  Under Florida's offer-of-judgment statute, a judgment needs to exceed a prior settlement offer by more than 25% to trigger an entitlement to attorney fees.

In this case, CCM had offered to settle its negligence and breach of contract suit against Petri for $500,000, but that offer was rejected.  After a trial in November 2016, a jury awarded CCM $551,881 in damages.  The trial court entered a judgment of $636,327, which included the jury's damages award plus $84,446 in prejudgment interest.  CCM then moved to recover attorney fees based on that figure, which exceeded its settlement offer by more than 25%.

Petri objected, pointing to the White decision, but the trial court disagreed and awarded CCM $73,579 in post-offer attorney fees and costs.  On appeal, the Fourth District Court of Appeal ruled that the prejudgment interest should not be included based on Supreme Court precedent, though the Fourth District said it would reach the opposite conclusion based on its own interpretation of the term "judgment entered" in the offer-of-judgment statute.

In a dissenting opinion, Chief Justice Charles T. Canady said the majority's result is "detached from the text of the statute."  "A fair reading of the text of the statute cannot support the interpretation articulated in the statements from White relied on by the majority," Justice Canady said.  "As the Fourth District explains, the authorities cited in White to support its discussion that is relevant to post-offer fees, costs and interest are cases interpreting a different statute, … which provides for the award of prevailing party fees to an insured in litigation against an insurer."

Petri's attorney, Thomas Hunker, told Law360 the language of the statute left much to the court's interpretation, but ultimately the court reached the right decision with an interpretation that is fair to the party receiving the offer.  "A contrary holding would've required an impossible amount of speculation on what might occur later in litigation, which would be unfair to a party who faces the prospect of sanctions when trying to evaluate whether or not to accept or reject a statutory proposal for settlement," Hunker said.

GA Appeals Court Affirms Jury’s $1.2M Attorney Fee Award

October 31, 2020

A recent Daily Report story by Greg Land, “Appeals Court Affirms Jury’s $1.2M Fee Award Blocks Fee Request Under Settlement Offer Law,” reports that affirming a trial judge, the Georgia Court of Appeals said an auto accident plaintiff who gleaned a $5 million judgment from a jury that included more than $1.2 million in attorney fees was not entitled to another fee award based on Georgia’s offer of judgment statute.  Lawyers for plaintiff Joao Junior had argued that the law—which allows a plaintiff to recover his fees and expenses if a defendant rejects a settlement demand then loses in court by a sum 125% or more than the spurned offer—was “clear and unambiguous” that the fees must be added.

A Fulton County judge ruled that such a double recovery was prohibited, and the appellate opinion authored by Presiding Judge Sara Doyle with the concurrence of Chief Judge Christopher McFadden and Judge Ken Hodges agreed.  The jury had awarded Junior’s fees under another statute, allowing for such an assessment for fees incurred in cases where a defendant “has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.”

While Georgia law and prior appellate court precedent do not necessarily bar a double fee recovery under both statutes, wrote Doyle, Junior filed his motion for fees under the offer of judgment statute after having already been awarded fees by the jury.  “In some instances,” said Doyle, a party “may have incurred fees after a jury verdict but prior to entry of the final judgment by the trial court, in which case a subsequent award under [the offer of judgment statute] by a judge for such fees would be appropriate.  “Junior, however, does not contend that he incurred such fees,” she said, and they were therefore rightly denied. 

Defendant Sharon Graham and her insurer, USAA, were represented at trial by Cruser Mitchell Novitz Sanchec Gaston & Zimet partner R. Russell Grant, who was joined in the appeal by firm partner J. Robb Cruser along with Laurie Webb Daniel and Matthew Friedlander of Holland & Knight.  “We, of course, believe the Court reached the correct result, and did so with a thoughtful and thorough analysis,” said Daniel in an email.  Plaintiffs attorney Ben Brodhead III said the opinion misinterpreted both the law and Georgia Supreme Court precedent.

“Although I have only had the decision from the Court of Appeals for a few minutes, it appears that the issue of whether fees were ‘incurred’ might be an issue that needs clarification,” said Brodhead, who represents Junior with Brodhead Law colleagues Ashley Fournet, Holli Clark and John Nichols.

“It appears,” said Brodhead via email, “the Court of Appeals is under the impression that the attorneys’ fees under 13-6-11 [the stubbornly litigious statute] go to the attorney to pay the plaintiff’s attorneys’ fees.  While that might seem reasonable on the surface, it is not how contingency fee contracts are structured.”

Regardless of the fees a jury awards, the amount a lawyer makes is governed by contract, he said: 40% of the recovery in this case.  “Accordingly, whether the money recovered is for medical bills, pain and suffering, attorneys’ fees, or lost wages, it is treated the same,” he said.  Brodhead said he would be filing a motion for reconsideration or a petition for certiorari with the Georgia Supreme Court. 

As detailed in the opinion and other filings, the convoluted case began more than a decade ago when the vehicle driven by Junior, now 61, was between two other cars at a stop sign on Old Milton Parkway when Graham hit the last vehicle in line.  Junior’s Nissan Sentra was totaled, and he ultimately underwent surgery for herniated disk.  In 2010, Brodhead sent USAA a demand for Graham’s $100,000 policy limit; the insurer replied with an offer of $14,500, which Junior declined.  In 2011, Junior sued Graham in Fulton County State Court, and in 2013 Brodhead offered to settle for $600,000, which USAA also declined.  Some years later, the insurer offered it’s $100,000 limit, which Junior refused. 

Following a trial last year before Fulton County Judge John Mather, the jury found for Junior in a final judgment totaling $4,979,066, including $1,251,554 in fees and expenses under the bad faith/stubbornly litigious statute.  Junior’s lawyers then moved to have the court award attorney fees and expenses from the time the $600,000 offer was rejected under O.C.G.A. 9-11-68, the offer of judgment statute.

In rejecting the motion, Mather wrote that “the statutory language does not explicitly preclude a determination of bad faith in either scenario.”  But, Mather wrote, “[w]hile an award under the two statutes may be based upon different conduct, the fees were expended as to one defendant under one cause of action.”

“While an award under the two statutes may be based upon different conduct, the fees were expended as to one defendant under one cause of action,” he said, and “allowing Plaintiff a further award of attorney’s fees would permit a double recovery.”  In appealing the order, Junior’s lawyers wrote that the offer of judgment statute’s mandate that a prevailing party “shall be entitled to recover reasonable attorney’s fees and expenses of litigation” did not involve any other sanction issued by a court or jury. 

“Specifically,” it said, “although the amount of damages under O.C.G.A. § 13-6-11 and the amount of sanctions under O.C.G.A. § 9-11-68 are both calculated with reference to attorneys’ fees, they are different statutes with different language that apply to different conduct that occurs at different times,” Junior’s appellate brief said. 

In upholding Mather, Doyle cited the Georgia Supreme Court’s 2014 decision in Ga. Dept. of Corrections v. Couch, 295 Ga. 469, which expressly stated that fees awarded by a jury for bad faith “must be based on conduct arising from the transaction underlying the cause of action being litigated, not conduct during the course of the litigation itself.  “By contrast, attorney fees awarded under OCGA § 9-11-68 (b) are not identified as damages; they relate entirely to conduct during the course of the litigation; and they are determined post-judgment by the court rather than during trial by the jury,” that ruling said. 

Couch, however, did not address whether a claimant could recover a full amount of attorney fees under OCGA § 13-6-11 and another full amount under OCGA § 9-11-68 (b), and such a finding is not implied in this case,” Doyle wrote.  “This is because, by the time that Junior filed his motion … he had no longer ‘incurred’ the $1,251,554 in attorney fees for which he was awarded additional damages by the jury—those costs had been compensated,” Doyle wrote.

Second Circuit Rejects Fee Request After Landmark SCOTUS Ruling

September 30, 2020

A recent Connecticut Law Tribune story by Tom McParland, “2nd Circuit Blocks Attorney Fees for Troopers Who Recovered Union Dues After Landmark SCOTUS Ruling,” reports that a Manhattan-based federal appeals court rejected an appeal from a group of Connecticut state troopers who petitioned for attorney fees after securing a refund of collective bargaining dues in the wake of the U.S. Supreme Court’s landmark Janus decision, finding that it lacked jurisdiction to determine if they were “prevailing parties” to the litigation.

The ruling, from a three-judge panel of the U.S. Court of Appeals for the Second Circuit, left in place, for now, a district court’s ruling that the case was moot because the Connecticut State Police Union had refunded the current and former officers the full amount they had paid into collective bargaining, plus interest.  In a six-page summary order, the Second Circuit said the lower court’s ruling, which dismissed the case without prejudice, was not a final judgment that could be appealed, and noted that more litigation was likely in the U.S. District Court for the District of Connecticut.

“Having reviewed the record, we find that there has been no final, appealable judgment entered in the district court.  Therefore, we do not have jurisdiction over this appeal and must remand to the district court for further proceedings,” the panel wrote.

The plaintiffs, who declined to join the union, filed their lawsuit before the Supreme Court held in Janus that the First Amendment bars public employers from withholding agency fees from workers who opt out of a collective bargaining union.  Following the Janus decision, the union stopped collecting fees, and eventually provided a full refund after the officers moved for summary judgment.

U.S. District Judge Victor A. Bolden denied the motion as moot, and later found that the plaintiffs did not qualify as “prevailing parties” to the litigation.  Though the case was “administratively closed,” it did allow the plaintiffs to petition the court for post-judgment attorney fees and costs.

The Second Circuit panel said that its jurisdiction was limited, with few exceptions, to appeals from final judgments by a district court.  The administrative closure, however, did not meet that threshold, and the judges said Bolden would still need to rule on the plaintiffs’ motion for declaratory judgment on remand.  “In short, we see no indication that a final order has been entered in this case,” the court said.

The Nation’s Top Attorney Fee Experts of 2020

June 24, 2020

NALFA, a non-profit group, is building a worldwide network of attorney fee expertise. Our network includes members, faculty, and fellows with expertise on the reasonableness of attorney fees.  We help organize and recognize qualified attorney fee experts from across the U.S. and around the globe.  Our attorney fee experts also include court adjuncts such as bankruptcy fee examiners, special fee masters, and fee dispute neutrals.

Every year, we announce the nation's top attorney fee experts.  Attorney fee experts are retained by fee-seeking or fee-challenging parties in litigation to independently prove reasonable attorney fees and expenses in court or arbitration.  The following NALFA profile quotes are based on bio, CV, case summaries and case materials submitted to and verified by us.  Here are the nation's top attorney fee experts of 2020:

"The Nation's Top Attorney Fee Expert"
John D. O'Connor
O'Connor & Associates
San Francisco, CA
 
"Over 30 Years of Legal Fee Audit Expertise"
Andre E. Jardini
KPC Legal Audit Services, Inc.
Glendale, CA

"The Nation's Top Bankruptcy Fee Examiner"
Robert M. Fishman
Cozen O'Connor
Chicago, IL

"Widely Respected as an Attorney Fee Expert"
Elise S. Frejka
Frejka PLLC
New York, NY
 
"Experienced on Analyzing Fees, Billing Entries for Fee Awards"
Robert L. Kaufman
Woodruff Spradlin & Smart
Costa Mesa, CA

"Highly Skilled on a Range of Fee and Billing Issues"
Daniel M. White
White Amundson APC
San Diego, CA
 
"Extensive Expertise on Attorney Fee Matters in Common Fund Litigation"
Craig W. Smith
Robbins LLP
San Diego, CA
 
"Highly Experienced in Dealing with Fee Issues Arising in Complex Litigation"
Marc M. Seltzer
Susman Godfrey LLP
Los Angeles, CA

"Total Mastery in Resolving Complex Attorney Fee Disputes"
Peter K. Rosen
JAMS
Los Angeles, CA
 
"Understands Fees, Funding, and Billing Issues in Cross Border Matters"
Glenn Newberry
Eversheds Sutherland
London, UK
 
"Solid Expertise with Fee and Billing Matters in Complex Litigation"
Bruce C. Fox
Obermayer Rebmann LLP
Pittsburgh, PA
 
"Excellent on Attorney Fee Issues in Florida"
Debra L. Feit
Stratford Law Group LLC
Fort Lauderdale, FL
 
"Nation's Top Scholar on Attorney Fees in Class Actions"
Brian T. Fitzpatrick
Vanderbilt Law School
Nashville, TN
 
"Great Leader in Analyzing Legal Bills for Insurers"
Richard Zujac
Liberty Mutual Insurance
Philadelphia, PA