NATIONAL PORTLAND CEMENT COMPANY, A FLORIDA CORPORATION, APPELLANT/CROSS-APPELLEE,
v.
FEDERICO A. GOUDIE, APPELLEE/CROSS-APPELLANT
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In this wrongful termination dispute, the court affirmed an award of attorney's fees to the prevailing employee but reversed in part to exclude fees for time spent determining the amount of the fee award itself. The case addresses the propriety of fee multipliers and the scope of recoverable attorney's fees under Florida's wage and corporate statutes.
The court affirmed the award of attorney's fees except for the portion attributable to time spent determining the amount of fees. The application of a multiplier under Florida Statute 448.08 is appropriate, and fees for defending an intertwined counterclaim are recoverable. However, fees may be recovered only for establishing entitlement to fees, not for establishing the amount. Prejudgment interest does not accrue on the fee award until the date of the fee determination order.
[1] A multiplier may be applied to attorney's fees awarded under section 448.08, Florida Statutes.
[2] Attorney's fees may be awarded for time spent defending against a counterclaim when the claims in the complaint and counterclaim are significantly and inextricably intert…
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Join FLexlaw to unlock all legal intelligence“The application of a multiplier in fees awarded pursuant to section 448.08, Florida Statutes (1995), is appropriate.”
Establishes that the trial court properly used a multiplier to calculate the reasonable attorney's fees award.
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Join FLexlaw to unlock all legal intelligenceFederico Goudie, former president of National Portland Cement Company (NPC), brought a three-count wrongful termination action. The trial court grante…
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PATTERSON, Acting Chief Judge.
In this litigation for wrongful termination between National Portland Cement Company (NPC) and its former president, Federico Goudie, Goudie was awarded attorney’s fees. We affirm the award of attorney’s fees with the exception of the portion awarded for time spent in establishing the amount of fees.
Goudie brought a three-count action. At trial, the trial court granted NPC’s motion for directed verdict as to two of the counts. The trial court submitted the third count, based on an incentive fee contract and NPC’s counterclaim for tortious conduct in Goudie’s performance of his duties as president, to the jury. The jury returned a verdict in Gou-die’s favor on the counterclaim and awarded Goudie $82,070 on his incentive fee contract claim.
As the prevailing party, Goudie moved for and was awarded $138,610 in attorney’s fees based on sections 448.08 and 607.0850(3), Florida Statutes (1995), and an indemnification provision in NPC’s bylaws. In arriving at this amount, the trial court applied a multiplier to both the fees incurred in the prosecution of the main action and in Goudie’s defense of the counterclaim. NPC challenges the use of a multiplier and, more particularly, the application of the multiplier to the fees incurred in defense of the counterclaim. We find no merit to NPC’s assertions. The application of a multiplier in fees awarded pursuant to section 448.08, Florida Statutes (1995), is appropriate. See Tampa Bay Publications, Inc. v. Watkins, 549 So. 2d 745 (Fla. 2d DCA 1989) (holding that the trial court properly applied a multiplier in arriving at a reasonable attorney’s fee in a suit for unpaid wages). Further, we agree with the trial court’s determination “that the primary issues in the Plaintiffs Complaint and the Defendant’s Counterclaim were significantly and inextricably intertwined,” and thus, we affirm the award of fees for time spent in defense of the counterclaim as well. See Warshall v. Price, 629 So. 2d 905 (Fla. 4th DCA 1993) (holding that plaintiff/employee was entitled to attorney’s fees for unsuccessful claim seeking unpaid wage because the claim was intertwined with successful claim).
NPC next challenges the trial court’s inclusion in the reasonable number of hours expended by Goudie’s attorneys those hours devoted to establishing the amount of the fee to be awarded. We agree that this was error. Goudie is entitled to include the number of hours devoted to establishing the right to a fee, but not to the amount.1 See State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla.1993) (holding that attorney’s fees may be recovered for time spent litigating entitlement to fees but not for time spent litigating the amount of fees).
In his cross-appeal, Goudie argues that the trial court erred in denying prejudgment interest on the fee award from the date of the original final judgment. However, Goudie was not entitled to fees until August 14, 1997, the date of the trial court’s order awarding attorney’s fees and costs. See Quality Engineered Installation, Inc. v. Higley S., Inc., 670 So. 2d 929 (Fla.1996) (holding that interest accrues on attorney’s fees from the date entitlement to fees is fixed through agreement, arbitration award or court determination, even though amount of award has not yet been determined).
We remand to the trial court with directions to recalculate the amount of the fee awarded by deducting hours devoted to the determination of the amount of the fee and affirm in all other respects.
Affirmed in part and reversed in part.
ALTENBERND and CASANUEVA, JJ., concur. . In so holding, we appear to be in conflict with the First District’s opinion in Diaz v. Santa Fe Healthcare, Inc., 642 So. 2d 765 (Fla. 1st DCA 1994), which holds that, in an action for unpaid wages, the trial court has discretion to award attorney's fees for time spent establishing the amount of fees.
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Mediplex Constr. OF Fla., Inc. v. Schaub, 856 So. 2d 13 (Fla. 4th DCA 2003)…ded that awarding fees for time spent litigating the amount of fees, assuming that the time benefitted the client, comported with the purpose behind section 448.08. Id. The Second District disagreed with Diaz in Nat’l Portland Cement Co. v. Goudie, 718 So. 2d 274 (Fla. 2d DCA 1998). There the court held that under section 448.08, the trial court may not award fees for time spent establishing the amount of fees according to Palma. The Schaubs contend that because a different statute was involved in their cas…
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Paladyne Corp. v. Weindruch, 867 So. 2d 630 (Fla. 5th DCA 2004)…sition of the Second District Court of Appeal, which applied the Supreme Court of Florida’s decision in State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla.1993), to cases arising under section 448.08. In National Portland Cement Co. v. Goudie, 718 So. 2d 274, 275 (Fla. 2d DCA 1998), the Second District held that the prevailing party is entitled under section 448.08 to attorney’s fees to establish entitlement to such an award, but not to establish the amount of the award. In fact, all appellate courts bu…
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Barron Chase Sec., Inc. v. Moser, 745 So. 2d 965 (Fla. 2d DCA 1999)…ror. Attorney’s fees may be awarded for litigating the issue of entitlement to fees, but not for time expended litigating the amount of fees. See State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla.1993); National Portland Cement Co. v. Goudie, 718 So. 2d 274 (Fla. 2d DCA 1998). For these reasons, we reverse the final judgment awarding attorney’s fees and pre-award interest. That portion of the award which confirms the arbitrator’s decision is affirmed. PARKER, A.C.J., and CASANUEVA, J., Concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla. 1993)
- Quality Engineered Installation, Inc. v. Higley S., Inc., 670 So. 2d 929 (Fla. 1996)
- Tampa BAY Publ'ns, Inc. v. Watkins, 549 So. 2d 745 (Fla. 2d DCA 1989)
- Diaz v. Santafe Healthcare, Inc., 642 So. 2d 765 (Fla. 1st DCA 1994)
- Warshall v. Price, 629 So. 2d 905 (Fla. 4th DCA 1993)