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MICHELE BARRY, Plaintiff,
v.
DOLGENCORP, LLC d/b/a DOLLAR GENERAL
Defendants.
IN THE CIRCUIT COURT OF THE l 7rn JUDICIAL CIRCUIT IN AND FOR
BROW ARD COUNTY, FLORIDA
CIVIL DIVISION
CASE NO. CACE-13-024231
SECOND FINAL JUDGMENT FOR ATTORNEY'S FEES AND COSTS
The Court, having heard argument of counsel, taken evidence, and
being otherwise fully
advised in the premises The court has carefully observed those
who have testified, evaluated
their candor and scrutinized their demeanor, resolved conflict
in the testimony and considered all
exhibits placed in evidence and finds and enters judgment in
this case as follows:
BACKGROUND
This case was a personal injury slip and fall case which was
tried before the Court for six
days. On November 4, 2014, the jury in this case entered a
verdict in favor of the Plaintiff
MICHELE BARRY, finding the Defendant DOLGENCORP, LLC 100% liable
for her injuries,
in the amount of $250,087.00.
Prior to the trial, Plaintiff served a proposal for settlement
to the Defendant for
$100,000.00, dated February 21, 2014. On December 1, 2014 this
Court entered an order
granting entitlement to attorneys' fees pursuant to Florida
Statutes 768.79 and Florida Rule of
Civil Procedure 1.442; this Court per the discretion afforded
the Court per Sec. 57.105(1) entered
an order sanctioning the Defendant and its counsel dated
December 1, 2014, Exhibit A, with
specific findings of fact found by the Court and enumerated
findings in writing in the transcript
attached hereto as Exhibit B, both incorporated by reference
hereto.[transcript page 61-94].
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FINDINGS
In a review of :Exhibit B attached hereto, the Court addresses
the following findings regarding
the fee aw~lfd pursuant to Florida Statute 57.l 05:
l. The conduct of defense counsel is sanctioned because it was
unacceptable, abhorrent,
willful and contemptuous. In short, defense counsel argued in
opening tha! Plaintiff sat in the
puddle after she fell for fifteen minutes, refused help offered
by Defendant's employees waiting
in the liquid for her husband to come in and take pictures and
that the DVD showed her moving
and bending over after the fall.[trial transcript vol. 2, page
221-223]. The defense and plaintiff
counsel stipulated to the entire store video of the Plaintiff in
the store and same was placed in
evidence by stipulation and Plaintiff counsel explained at that
time to the defense ''we're going
to play the store video you guys gave us". [trial transcript
page 300-305] [Exhibit B page 68 and
64 respectively]. Defense counsel waited until after the DVD was
admitted in evidence and
waited until after the DVD video was played to the jury and
moved for a mistrial on a
nonexistent basis: an order in limine. Basically, the DVD
contradicted much of what the defense
presented in opening statement about the Plaintiff~ s conduct
after she fell.
2. The first problem for the defense is that they argued an
order in limine that does not
exist. Motion in Limine number two dealt only with the other
cameras that documented the
hazardous condition of having children pick up sports equipment
and start playing soccer or
basketball down the aisle in the store. For the issue of notice
of the admitted hazardous activity
to the defendant, the Court ruled that only the video of the
child~s play before the fall were
relevant and admissible. The motion, argument and order only
addressed the child's play video.
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3. The second prnblem is that to move in limine after the video
is in evidence and
played to the jury was untimely and in violation of the Court's
trial order.
4. The third problem is that there is no legal basis for the
motion for mistrial the defense
made at the time the video was played and which they continue to
assert through the
December 1, 2014 hearing Exhibit B attached hereto. Any
possibility that the false argument
made by the multiple defense counsel that there was a motion in
limine and an order addressing
the video of the Plaintiff was a mistake, is devastated,
destroyed, eviscerated, and rendered
nonsensical by the defense continued insistence and argument,
first wanting a mistrial then
wanting sanctions then wanting a new trial even after the
Plaintiff and the Court repeatedly point
out that there is no basis for their argument. Defense, we did
have an unequivocal ruling saying
everything after the fall is not relevant from your Honor. We do
have that on the record."
[Exhibit B page 61., line 10-12]. The Court then again pointed
out that was not the ruling.[ Id
line 16 continuing to page 62, line 8]. Looking at Exhibit B,
pages 61, 62, 63, and 69, line 10
through 14 [ ''it's our fourth argument on the motion" and "we
are just trying to preserve the
record"] the only conclusion is that there are
misrepresentations being repeated to the Court by
multiple defense counsel and it is not a mistake: it is
shameful. The defense record of
misconduct is preserved.
5. The fourth problem is that at the time the defense first
objected after the video tape,
they had already discussed in opening what they alleged the
Plaintiff was doing after the fa.II:
turning down the employees trying to render aid, bending etc. So
if they truly believed the video
could not be shown because the Comt had ordered that the conduct
of the Plaintiff after the fall
was not relevant, then they intentionally violated the court
order they thought in place by arguing
the conduct in opening. Obviously they knew no such order
existed and sought to mitigate the
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damage caused by the conflict between the video and their
opening statement by moving for a
mistrial and hoping the Court would accept their misleading,
unfounded motion and argument.
Interestingly, the defense has sent in three different lawyers
for these hearing perhaps trying to
avoiq. only one target for conduct that is sanctionable beyond
F.S. 57.105 as direct contempt.
The Court makes the following findings in support of the fee
award pursuant to Florida
Statutes 768. 79 and :Florida Rule of Civil Procedure l.442:
1. The then apparent merit or lack of merit in the claim.
This case was a slip and fall case in which liability was hotly
contested by the Defendant.
The Plaintiffs primary injury in this case were two fractured
vertebrae. Portions of the incident:
were also captured on video and depicted the Plaintiff falling
on detergent through no fault of her
own. As the Fourth District Comt of Appeal acknowledged in
Labaton v. 1Vfellert, 772 So. 2d
622, 623 (Fla. 4th DCA 2000), "[(!rip and fall cases are viewed
with a great deal of skepticism
by the general public, personal injury attorneys, insurance
companies and, inost importantly, by
juries." In Labat on the Fourth District Court of Appeal
affirmed an award of attorneys' fees
pursuant to a proposal for settlement which exceeded the total
recovery of the Plaintiff See Id. In
so holding, the Fourth District cited the fact that the trial
was hotly contested, lasted several days~
and that counsel for Plaintiffs was required to finance the
litigation with his own separate
resources with the probability of reimbursement directly linked
to the results of the litigation. See
Id
2. The number and nature of offers made by the parties.
In this case both sides served proposals for Settlement.
Defendant served proposals for
settlement in the amount of $10,000.00 on June 24, 2014, and for
$40,000.00 on July 24, 2014.
Plaintiff served proposals for Settlement in the amount of
$100,000.00 on February 21, 2014,
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$149,999.00 on April 24, 2014, and in the amount of $400,000.00
on July 31, 2014. Defendant
refused to accept any of Plaintiffs proposals for settlement
which :increased as additional
evidence supporting liability and damages was obtained during
discovery. Finally, by way of
letter to Defendant's counsel on August 21, 2014, Plaintiffs
counsel offered to settle Plaintiff's
claim for $200,000.00; an offer which the Defendant also
rejected. On November 4, 2014 after a
six day trial for which every aspect of the case was hotly
contested, the jury returned a verdict
for the Plaintiff in the amount of $250,087.00.
Therefore, given the value of the case and the evidence
supporting liability Plaintiffs
offers of settlement were reasonable and in good faith. See
Nants v. Gr?ffzn, 783 So. 2d 363, 365
(Fla. 5th DCA 2001) ("[t]he question to be considered by the
comi 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").
3. The closeness of guestions of fact and law at issue.
The closeness of questions of fact and law were also of note in
this case. While on its
face the case appeared to be a n01mal "slip and fall case" the
Defendant aggressively asserted a
defense via summary judgment and at trial under Florida Statutes
768.0755 which only recently
went into effect in July of 2010. Furthermore, the theory of
liability asserted by Plaintiff was
based on Florida Statutes 768.0755(b), alleging that a dangerous
condition occurred regularly on
the subject premises in the form of unsupervised children
repeatedly entering the store and
knocking over merchandise. At the time of the trial only one
appellate opinion had addressed this
theory of liability under the new statute. See Feris v. Club
Countly
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statute was enacted by the State Legislature to make it more
difficult for plaintiffs to pursue slip
and fall claims against retail stores.
This Court was also required to conduct an extensive Daubert
hearing pursuant to Florida
Statute 90.702 (2013), which resulted in the Court limiting the
testimony of the Defendant's
expert radiologist, Michael Raskin, M.D. There were also other
complex and novel issues
dealing with the preservation of electronic evidence in the form
of digital video, and whether or
not minor children could be addec.l to the verdict form as
nonpart:ies.
4. Whether the person making the off er had unreasonably ref
used to furnish information necessary to evaluate the
reasonableness of such offer.
Prior to serving her first proposal for settlement on February
21, 2014, Plaintiff had fully
responded to Defendant's first set of interrogatories and
requests for production on February 12,
2014 and February 14, 2014. Additionally, the Defendant was in
possession of the video
depicting the subject incident on the day it happened which was
also available for its review.
5. Whether the suit was in the nature of a test case presenting
questions of far-reaching imnortance affecting nonparties.
This factor is addressed at section 3.
6. The amount of the additional delay cost and expense that the
person making the offer reasonably would be expected to incur if
the litigation should be prolonged.
The Court finds that this factor is supported by the Plaintiff's
am davit that the
Defendant's refusal to settle contributed to the loss of her
business and made it more difficult to
keep up with her mortgage.
"All other relevant criteria" pursuant to Florida Statutes
768.79(7)(b)
The reasonableness of the hourly rate is further supported by
the fact that as far back as
ten years ago, appellate Courts in Florida have affirmed awards
of hourly rates between $400 -
$450 to attorneys where there is contentious litigation and/or
complex issues are involved. See
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Lobaton, 772 So.2d at 623; Homer & Bonner, P.A. v.
1'1iami-Dade County, 884 So. 2d 425, 427
(Fla. 3d DCA 2004 ). liere the hourly rate sought for the
majority of the work performed by
Plaintiff's counsel is $350.00 or less, with the higher rate of
$600.00 requested only for senior
lead trial counsel Christopher Wadsworth.
The rates claimed by the Plaintiff's counsel are further
suppotied by the Florida Supreme
Court'.s holding in First Baptist Church ofCape Coral, Florida,
Inc. v. Compass ... , 115 So.3d
978 (2013 ), where the Florida Supreme Court upheld a fee award
where the contract between the
prevailing party and its counsel indicated that if anyone other
than the client was required to pay
counsel's attorneys' fees the rate would be substantially
higher. Here, Plaintiffs retainer
agreement contains the same alternative fee recovery clause
approved by the Florida Supreme
Court in First Baptist.
The Court further notes the extremely aggressive litigation
strategy taken by the
Defendant in this case which resulted in numerous hearings
before the Court on routine
discovery matters, several motions to strike, and dozens of
pretrial motions. For example, on
September 23, 2014 the Defendant noticed for hearing 15 separate
pretrial motions and an
additional 11 pretrial motions on October 27, 2014. This was in
addition to the dozens of
additional motions filed during the pendency of this case and
through trial. This strategy was
further evidenced by the fact that the Defendant brought four
attorneys to trial and managed to
bill over 1,017 hours of attorney time from February 21, 2014
through January 15, 2015.
The Defendant's conduct here is similar to the conduct of the
defendant in State Farm
Fire & Cas. Co. v. Palma, 524 So. 2d 1035, 1036 (Fla. 4th
DCA 1988) approved, 555 So. 2d 836
(Fla. 1990). There, the defendant chose to take the plaintiff
"to the mat" and make an example
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out of his case. In affirming the substantial fee award the
Fourth District Court of Appeal held
that:
The bonower's counsel did not inflate this small case into a
large one~ its protraction resulted from the stalwart defense. And
although defendants are not required to yield an inch or to pay a
dime not due, they may by militant resistance increase the
exertions required of their opponents and thus, if unsuccessful, be
required to bear that cost. .. However, the parties elected to go
toe-to-toe over the issue and they brought to bear all of their
skill and resources to try to win the day as evidenced by the
number of medical experts and the time of trial. .. the stakes were
high and the issue became complex, justifying the legal effo1t.
Likewise, Dollar General and its counsel chose to go
'"toe-to-toe" with Plaintiff and her
counsel but lost. They cannot now complain that their aggressive
litigation strategy resulted in
Plaintiff having to expend 695 hours to respond to the 1017
hours of attorney time Defendant
chose to expend defending a "slip and fall" case.
Expert testimony:
The Court has also heard testimony from the paiiies' fee experts
and finds that the time
spent and hourly rate claimed by the Plaintiff's counsel is
properly supported by the expert
testimony of Thomas Buser, Esq., who has practiced as a trial
attorney on behalf of plaintiffs in
Broward County, Florida for over thirty years and who :is
eminently familiar with the rates
charged in the community by lawyers of reasonably comparable
skill, experience and reputation
for similar services. Mr. Buser testified that reviewing the
case and testifying was a 4 hour
time expenditure that took time away from his busy practice and
that he was expecting to be
paid. His hourly rate was also $600 per hour.
Sanctions pursuant to Florida Statutes 57.105:
The Court makes the following additional findings relating to
its order sanctioning the
Defendant and its counsel pursuant to Florida Statutes 57
.105:
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On December 1, 2014, this Court also entered an order
sanctioning Defendant
Dolgencorp, LLC and its attorneys pursuant to Florida Statutes
57.105(1) which states:
(1) Upon the court's initiative or motion of any party, the
court shall award a reasonable attorney's fee, including
prejudgment interest, to be paid to the prevailing party in equal
amounts by the losing party and the losing party's attorney on any
claim or defense at any time during a civil proceeding or action in
which the court finds that the losing party or the losing party's
attorney knew or should have known that a claim or defense when
initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to
establish the claim or defense; or (b) Would not be supported by
the application of then-existing law to those material facts.
Even where the underlying defense or claim is meritorious, a
trial court may sanction a party
where they have filed a frivolous motion during or subsequent to
trial. See Freedom Commerce
Ctr. Venture v. Ranson, 823 So. 2d 81 7, 821 (Fla. 1st DCA
2002); JP Morgan Chase Bank, NA.
v. Hernandez, 99 So. 3d 508, 513 (Fla. 3d DCA 2011 ).
Here the Court sanctioned the Defendant and its counsel on its
own initiative for the
following conduct reflected in writing and made part of the
12/1/2014 order (Exhibit B hereto).
a. violating the Court's pretrial order governing the timely
filing of motions in
limine and the proffer of evidence prior to trial;
b. moving for a mistrial and filing various post trial motions
alleging without any
basis in law or fact that the Court had entered an order in
limine relating to
portions of the store video depicting events subsequent to the
Plaintiffs fall, and
that Plaintiffs had violated this nonexistent order and should
be sanctioned.
c. Repeatedly misquoting the Court as to its pretrial rulings.
1
As the sanction pursuant to 57.105 was entered pursuant to the
Court's own initiative the
21 day safe harbor period is inapplicable. See Morton v.
Heathcock, 913 So. 2d 662 (Fla. 3d
DCA 2005) (twenty-one day notice requirement imposed by
statutory provision establishing 1 See December 1, 2014 Hearing
Transcript at 71 : 13 - 94 :25.
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attorney fees for frivolous claims does not apply to fee awards
imposed on the trial. court's own
initiative as express! y authorized under the statute Fla. Stat.
5 7 .10 5 ( 1, 4)).
Furthermore, the trial court is free to measure the award of 57
.105 attorney's fees from
the time the Defendant and its counsel knew or should have known
that the claim had no basis in
fact or law. Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d
615, 620 (Fla. 4th DCA 2006).
Therefore, the trial Court awards 57 .105 attorneys' fees by
applying a 1~5 multiplier to the total
attorney fee award as discussed in the next section from the
time of the proposal for settlement to
the time of the verdict, although the Court finds entitlement to
the time of the February 26, 2015,
hearing because the defense continued to make the frivolous
argument to the end, plaintiff
presented no evidence of how much time he expended to that date.
The sanction is imposed to
have a meaningful sanction for Defense counsel's violations of
the Court's pretrial order,
violation of the Court's pretrial rulings, and improper motion
for mistrial2 in light of the fact that
Plaintiff is already entitled to their fees per the proposal for
settlement.
Lodestar Factors
The Court specifically considered the evidence of the following
factors in determining
the reasonable hourly fee and the reasonable number of hours
spent by Plaintiffs' counsel
litigating this case:
A. The time and labor required, the novelty and difficulty of
the question
. involved and the skill requisite to perform the legal service
properly.
B. The likelihood, if apparent to the client, that the
acceptance of the particular
employment will preclude other employment by the lawyer.
C. The fee customarily charged in the locality for similar legal
services.
2 Tr. Tran. Vol. 3 at 319:24- 322: 14; 335: 19 - 344:23
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D. The amount involved and the results obtained.
E. The time limitations imposed by the client or by the
circumstances.
F. The nature and length of the professional relationship with
the client.
G. The experience, reputation, and ability of the lawyer or
lawyers performing
the services.
H. Whether the fee is fixed or contingent.
14. The Court has also considered the fee agreements entered
into between the
Plaintiffs and Wadsworth, Huott, and determined it is
contingent, providing the payment
of a fee upon recovery to be the higher of 40% of the recovery
or an amount at $600 per
hour to be awarded by the Court. Consequently, the Court may
award a reasonable fee
exceeding the fee which would be recoverable under the
percentage alternative of the
agreement. Kaufman v. MacDonald, 557 So.2d 572 (Fla. 1990).
15. Although not requested by Plaintiff, the Court heard
evidence of whether it
should award a contingency risk multiplier as a F .S. 57.l 05
sanction and considered:
A. Whether the relevant market requires a contingency fee
multiplier to
obtain competent counsel, and determined the market so required
based on the difficulty
of taking a slip and fall case with questions of notice to
conclusion. Further, early on in
the case, after at the very beginning giving the defendant
notice to preserve store video
before the incident, Plaintiff learned that Defendant had erased
views from other cameras
that would have been relevant to notice. It would have been easy
to drop the case or
settle for peanuts.
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B. Whether the Plaintiffs attorney was able to mitigate the risk
of non-
payment in any way, and the Court determined there was no
meaningful mitigation of the
risk of nonpayment at the time the contract was entered into
because this was a pure
contingency fee contract, no retainer, no hourly fee, no
high-low agreement, no deposit
for cost etc.
C. Whether any of the factors set forth in Florida Patient's
Compensation
Fund v. Rowe, 472 So.2d, 1145 (Fla. 1985) are applicable; the
results obtained, the
difficulty of the case, the experience of counsel, the time
limitations created by the
circumstances of this case because the defense chose to go to
the mat in overreaching
over litigating, billing over 1,000 hours on a slip and fall and
fighting or filing 55 pretrial
motions most of which required hearings, and also, the type of
Plaintiffs' fee agreement.
Further, Plaintiff counsel testified as to how busy he was and
how he would have been
able to bill defense files at similar rates to the rate sought
herein but for the time he
allocated to this case. These factors were further discussed on
pages 4-8 herein.
D. The likelihood of success at the outset which the Court finds
to have
been that success was unlikely at the outset based on the notice
and liability issues.
CONCLUSION
Pursuant to Florida 768. 79 and Florida Rule of Civil Procedure
1.442, and pursuant to the
Proposal for Settlement served by the Plaintiff MICHELE BARRY on
the Defendant
DOLGENCORP, LLC, the_ Court awards Plaintiff MICHELE BARRY and
her attorneys
WADSWORTH, HUOTT LLLP, 14 N.E. 1st Avenue 10th Floor, MIAMI, FL
33132
("WADSWORTH HUOTT"), and finds a reasonable number of hours
spent by Plaintiffs'
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counsel to be 650 hours of attorney time, reducing some of the
travel time, finding reasonable
and basically uncontested by the defense 250 hours for Wadsworth
and 400 hours for the
associates.
Pursuant to Florida Statutes 768.79 the Court awards MICHELE
BARRY and her
attorneys WADSWORTH HUOTT 650 total hours of attorney time at an
hourly rate of
$ 550.00 for Christopher Wadsworth,
$ 350.00 for Raymond Dieppa,
$ 350.00 for Giselle Jorge,
$ 350.00 for Jamie Dixon,
$ 350.00 for Is ha Kocchar,
Pursuant to Florida Statutes 768.79 and 57.105 DOLGENCORP, LLC
shall pay the sum of:
$ 277,500.00 in attorneys' fees, (650 hours, 250 Wadsworth plus
400 associates, the Court
removed part of the travel time because the defense should not
pay for all travel
time for WPB counsel when local counsel is available).
$ 138,750.00 as a FS 57.105(1) sanction, the court applied a 1.5
multiplier to the above attorney
fee, of which Defendant, DOLGENCORP, LLC and defense counsel
HIGHTOWER, STRATTON, WILHELM, will each be liable for 50%,
and shall pay equal amounts totaling $69,375.00 each.
$ 7,309.00 in litigation costs
$ 2,400.00 in expert witness fees to Plaintiffs fee expert
Thomas Buser Esq.( four hours at a
rate of$ 600 per hour).
Accordingly, it 1s hereby ORDERED ADJUDGED that the Plaintiff,
MICHELE
BARRY, 220 N.W. 72 Avenue Hollywood, FL 33024 recover from the
Defendant,
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DOLGENCORP, LLC, 100 MISSION RIDGE, GOODLETTSVILLE, TN 37072,
the sum of
$356,584.00 and the sum of$ 69,375.00 from HIGHTOWER &
PARTNERS, P.A.; 4770
BISCAYNE BLVD. SUITE 1200, MIAMI, FL 33137 ("HIGHTOWER").
Pursuant to Florida Rule of Civil Procedure 1.560, it is further
ordered and adjudged that
the judgment debtor(s) shall complete under oath Florida Rule of
Civil Procedure Form 1.977
(Fact Information Sheet), including all required attachments,
and serve it on the judgment
creditor's attorney, or the judgment creditor if the judgment
creditor is not represented by an
attorney, within 45 days from the date of this final judgment,
unless the final judgment is
satisfied or post-judgment discovery is stayed. Jurisdiction of
this case is retained to enter further
orders that are proper to compel the judgment debtor(s) to
complete form 1.977, including all
required attachments, and serve it on the judgment creditor's
attorney, or the judgment creditor if
the judgment creditor is not represented by an attorney.
The foregoing amounts to bear interest at a rate of 4.75% per
arnium3 for which let
execution issue forthwith.
DONE AND ORDERED in Broward County, Florida this 2nd day of
March 2015.
Copies furnished to: Christopher W. Wadsworth,
Esq.(cw(@,wadsworth-law.com) Raymond R. Dieppa, Esq.
([email protected]) Dale Hightower, Esq. (
[email protected]) Scott Kantor, Esq.
([email protected])
3Running from December 1, 2014, the date the Court found
entitlement to fees.
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