JAIRO RAFAEL NUNEZ AND GABRIEL ROGELIO NUNEZ

v.

W. RILEY ALLEN

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JAIRO RAFAEL NUNEZ AND

GABRIEL ROGELIO NUNEZ,

Appellants,

v. Case No. 5D14-4386

W. RILEY ALLEN,

Appellee. ________________________________/

Opinion filed October¹¹, 2019

Appeal from the Circuit Court for Orange County, Donald A. Myers, Jr., Judge.

Elizabeth C. Wheeler, of Elizabeth

C. Wheeler, P.A., Orlando, for Appellants.

W. Riley Allen, of Riley Allen Law, and

Simon L. Wiseman, of The Wiseman Law Firm, P.A., Orlando, and Thomas D. Hall, of The Mills Firm, P.A., Tallahassee, for Appellee.

UPON REMAND FROM THE FLORIDA SUPREME COURT

LAMBERT, J.

In Nunez v. Allen, 194 So. 3d 554 (Fla. 5th DCA 2016), this court reversed a final judgment awarding W. Riley Allen (“Appellee”) $343,590 in attorney’s fees and legal assistant fees against Jairo Rafael Nunez and Gabriel Rogelio Nunez (“Appellants”) under section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442.

In addition to the argument that was ultimately rejected by the supreme court, Appellants had also raised before our court the following three arguments for reversal: (1) the trial court erred in not considering Appellee’s separate $20,000 proposals for settlement to each Appellant as one aggregate proposal for settlement to them in the sum of $40,000 and, if it had, Appellee would have failed to meet the monetary threshold under the rule and statute for an award of attorney’s fees; (2) alternatively, if the proposals for settlement were otherwise enforceable, Appellee should not be awarded attorney’s fees for representing himself or, at the very least, should not be awarded attorney’s fees for his own services rendered after Appellee’s co-counsel began representing him; and (3) the amount of the attorney’s fees awarded for this case was unreasonable and not supported by competent substantial evidence. Nunez, 194 So. 3d at 557. In our prior opinion, because we found to be dispositive the argument that Appellee’s proposals for settlement were ambiguous and thus unenforceable, we specifically declined to address these other arguments. Id. On remand, we now address the merits of each.

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SHOULD APPELLEE’S SEPARATE PROPOSALS FOR SETTLEMENT HAVE BEEN CONSIDERED IN THE AGGREGATE –

This case resulted from a motor vehicle accident in which Appellant, Gabriel Nunez, was operating a vehicle owned by his father, the co-appellant, Jairo Nunez, when he struck a truck owned by Appellee, which was lawfully parked in the street and unoccupied. Id. at 556. Appellee filed a one-count complaint against Appellants, alleging that Gabriel Nunez negligently operated the vehicle and that Jairo Nunez, as the owner of the vehicle, was vicariously liable for his son’s negligent driving. Id. Appellee sought damages for the post-repair diminution in the value of his truck, the cost of the repairs, and his loss of the use of this truck. Id. Appellants, who were represented by the same counsel, jointly answered the complaint. Id.

Following a two-day bench trial, the trial court rendered an amended final judgment in favor of Appellee jointly against both Appellants in the sum of $29,785.97, including “significant”1 prejudgment interest, reserving jurisdiction to award attorney’s fees. Id. Because the amount of this judgment exceeded Appellee’s individual $20,000 proposals for settlement served on each Appellant by at least twenty-five percent, Appellee moved for an award of reasonable attorney’s fees against both Appellants under section 768.79(1), Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442. Id. at 556– 57. Appellants responded that because Appellee had treated Appellants as a single entity as evidenced by having sued them together in one count, and because they could only be jointly liable for any damages, the separate $20,000 proposals for settlement

1 The term “significant” was used by the trial court in the final judgment awarding attorney’s fees under review.

Shortly after we issued our prior opinion in this case, the supreme court resolved this issue adversely to Appellants when it held that the aggregating of offers of settlement for the purpose of determining entitlement to attorney’s fees “cannot be tolerated under a strict construction of section 768.79.” See Anderson v. Hilton Hotels Corp., 202 So. 3d 846, 858 (Fla. 2016); accord Cassedy v. Wood, 263 So. 3d 300, 304 (Fla. 1st DCA 2019).

IS APPELLEE ENTITLED TO AN AWARD OF ATTORNEY’S FEES FOR REPRESENTING HIMSELF –

Appellee, a very experienced, competent civil trial lawyer, represented himself throughout the majority of this litigation, including after he retained co-counsel to assist him. In the final judgment under review, the trial court awarded to Appellee attorney’s fees for 425.2 of the hours that he personally expended on the case. It also awarded attorney’s fees to Appellee for 205.1 hours spent on this case by his co-counsel. In the instant argument, Appellants make a two-pronged attack regarding the attorney’s fees award to Appellee for representing himself. First, they argue that Appellee should not have been awarded any attorney’s fees for his self-representation. Second, they assert that, at the very least, Appellee should not have been awarded attorney’s fees for services that he performed once he was represented by his co-counsel. We disagree with Appellants.

5

Addressing Appellants’ first argument, we note that more than thirty years ago, our court held that “attorney fees should be awarded to an attorney representing himself in a case where the fees would be recoverable by the same party if represented by independent counsel.” McClung v. Posey, 514 So. 2d 1139, 1140 (Fla. 5th DCA 1987). Two of our sister courts had similarly approved an award of attorney’s fees to an attorney who had represented himself. See Friedman v. Backman, 453 So. 2d 938, 938 (Fla. 4th DCA 1984); Quick & Reilly, Inc. v. Perlin, 411 So. 2d 978, 980 (Fla. 3d DCA 1982). Subsequently, the First District Court ruled that an attorney is entitled to recover attorney’s fees under section 57.105, Florida Statutes, for defending himself against a frivolous suit. See Albritton v. Ferrera, 913 So. 2d 5, 10 (Fla. 1st DCA 2005). Appellants acknowledge that the present state of the law in Florida permits an attorney who represents himself or herself in litigation to recover attorney’s fees, but they ask that we reconsider this issue in light of the United States Supreme Court’s decision in Kay v. Ehrler, 499 U.S. 432 (1991).

The question before the Court in Kay was whether an attorney who represents himself in a successful civil rights action may be awarded reasonable attorney’s fees as part of the costs under title 42, section 1988, United States Code. Id. at 433. In affirming the decision of the Sixth Circuit Court of Appeals denying attorney’s fees to the selfrepresented pro se plaintiff, the Court analyzed the language of this civil rights statute and determined that its specific intent was to enable potential plaintiffs to obtain the assistance of competent counsel to vindicate their rights. Id. at 437. The Court thus concluded that to award attorney’s fees to a pro se plaintiff, even if he or she was an

Here, unlike the purpose of the attorney’s fees provision in the federal statute discussed in Kay, section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 are not intended to encourage plaintiffs to obtain the advice of independent counsel. Rather, their purpose is to penalize a party who rejects a reasonable settlement offer. See Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 218–22 (Fla. 2003). It is the unreasonable rejection of an “offer of settlement,” and not the cause of action itself, that triggers the right to recover attorney’s fees. See Leapai v. Milton, 595 So. 2d 12, 15 (Fla. 1992). Accordingly, while under Kay the denial of attorney’s fees to a licensed attorney representing himself in a federal civil rights action comports with the statutory policy of 42 U.S.C. § 1988 to encourage plaintiffs to obtain independent counsel, it is inconsistent with the purpose of section 768.79 and rule 1.442 to penalize a party for rejecting a reasonable settlement offer, even one made by a self-represented plaintiff who is a licensed attorney. We therefore conclude that the holding and analysis in Kay does not preclude an award of attorney’s fees under section 768.79 and rule 1.442 to an attorney representing himself or herself in the litigation.

In the second prong of their argument, Appellants assert that, consistently with the First District Court’s decision in Maulden v. Corbin, 537 So. 2d 1085 (Fla. 1st DCA 1989), any portion of the attorney’s fees awarded by the trial court to Appellee for his services after he was represented by co-counsel was error and should be stricken. In Maulden, an attorney had represented himself for nearly two years in the litigation before retaining separate counsel. Id. at 1087. The attorney prevailed at trial in his breach of contract

The First District Court reversed the final judgment awarding attorney’s fees and remanded for a reconsideration of the award. Id. Pertinent to the present issue, the court held that the attorney “is entitled to a[n] [attorney’s] fee for representing himself, but only until he engaged [co-counsel] to represent him, at which point [the attorney] became a client.” Id. at 1087. The court reasoned that neither the contract between the parties nor any statutory authority allowed for an attorney to be reimbursed for his own participation in the litigation once he was represented by counsel. Id.; accord Keen v. Bovie Med. Corp., No. 8:12-cv-305-T-24-EAJ, 2014 WL 293472, at *8 (M.D. Fla. Jan. 27, 2014) (concluding that once the pro se plaintiff attorney hired outside counsel, he was not entitled to attorney’s fees for his subsequent participation in the case because he had then become a client).

Appellee urges this court not to adopt the First District Court’s holding in Maulden. Instead, he suggests that the better approach in deciding whether an attorney, who is a party to the litigation, may recover attorney’s fees for his or her own services rendered at a time when he or she is also being represented by co-counsel comes from the Fourth District Court’s decision in Transflorida Bank v. Miller, 576 So. 2d 752 (Fla. 4th DCA 1991). The court there determined that an attorney who performed legal services in the

Id. at 753–54.

We agree with the reasoning and approach taken by the Fourth District Court. We therefore hold that the decision whether to award attorney’s fees to an attorney, who is a party in the case, for his or her own services performed during the time when the attorney is also being represented by co-counsel is dependent upon whether the task performed by the party-attorney is for actual legal services. For example, if, after having retained co-counsel, the party-attorney deposes a witness or deposes the adverse party without the assistance of co-counsel, we see no reason why he or she should not receive an award of attorney’s fees for this service, assuming entitlement to such an award. Nevertheless, as we explain in the following section, because we are reversing the present attorney’s fees award, any attorney’s fees that the trial court subsequently awards to Appellee on remand for his services during the time that he was also represented by his co-counsel should reflect only such time reasonably spent by Appellee performing actual legal services that are not duplicative of the time expended by his co-counsel.

The trial court awarded to Appellee in its final judgment attorney’s fees and legal assistant fees that it computed as follows: (a) Appellee – 425.2 hours x $600/hour = $255,120.00 (b) Appellee’s Co-Counsel – 205.1 hours x $400/hour = $82,040.00 (c) Paralegal – 64.3 hours x $100/hour = $6,430.00 Total - $343,590.002

Appellants challenge this award as being both unreasonable and not supported by competent substantial evidence. We review a trial court’s determination of the attorney’s reasonable hourly rate for services provided and the reasonable number of hours expended by counsel under the abuse of discretion standard. Trumbull Ins. Co. v. Wolentarski,² So. 3d 1050, 1057 (Fla. 3d DCA 2009), disapproved on other grounds in Kopel v. Kopel, 229 So. 3d 812 (Fla. 2017). Appellee responds that there was no abuse of discretion in the trial court’s ruling as he personally testified and presented separate expert witness testimony at the attorney’s fees hearing that supported both the hourly rate and the number of hours found by the trial court to be reasonable for attorney services rendered on his behalf in this case. This, however, neither ends our analysis on the issue before us nor summarily equates to the $343,590 attorney’s fees and paralegal fees award being reasonable for Appellee’s claim for damages for the diminution in the value of Appellee’s then-six-year-old truck, the cost to repair the truck, and Appellee’s loss of its use while the truck was being

2 The determination by a trial court of a reasonable hourly rate for the attorney’s services and the number of hours reasonably expended by the attorney in the case in calculating an award of attorney’s fees is referred to as the lodestar approach. See Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985).

The final judgment goes into detail explaining how certain actions taken by Appellants in this case apparently significantly contributed to the additional time expended by counsel and resultingly supported the amount of the attorney’s fees award.³ Nor did it involve a matter of far-reaching jurisprudential significance.⁴ Appellants’ negligence for the accident and their liability for some amount of damages incurred by Appellee was apparent from the outset. Appellee’s truck was indisputably lawfully parked in the street when Appellant, Gabriel Nunez, breached his duty to operate his father’s vehicle with due care when he struck Appellee’s truck. The truck clearly sustained

3 Both parties were apparently permitted to prepare and submit proposed final judgments to the trial court in lieu of making closing arguments at the conclusion of the hearing. Appellants have raised, as part of their claim here, the significant one-sidedness of the final judgment entered, suggesting that the trial court simply adopted Appellee’s proposed judgment and, in doing so, made findings that did not “comport with facts in this record.” While, after reviewing the final judgment, we can appreciate and understand Appellants’ concerns regarding the one-sidedness of the judgment, in light of our opinion reversing on other grounds and because the instant record is not entirely conclusive that the trial court simply adopted Appellee’s proposed final judgment, we decline to address this argument any further.

4 As an aside, the final judgment for damages in the amount of $29,788.97 was never appealed and was paid long ago.

While Appellee did present evidence to support the attorney’s fees award under review, “[n]o court is obliged to approve a judgment which so obviously offends even the most hardened appellate conscience and which is so obviously contrary to the manifest justice of the case. Indeed, it is obliged not to.” Miller, 607 So. 2d at 484 (citing Fla. Nat’l Bank of Gainesville v. Sherouse, 86 So. 279, 279 (Fla. 1920)). As indicated, in its final judgment, the trial court determined that a total of 694.6 hours in attorney and paralegal time, the bulk of which was time spent by attorneys (630.3 hours), was reasonably incurred by Appellee just from the time the proposals were made to the conclusion of the case. Contextually, 630.3 hours equates to one attorney working forty hours per week on this case and no other for almost four months.5

Judges have a special responsibility in determining reasonable fees for attorneys. Progressive Express Ins. Co. v. Schultz, 948 So. 2d 1027, 1031 (Fla. 5th DCA 2007) (citing Miller, 607 So. 2d at 484–85). Eighty-four years ago, the Florida Supreme Court emphasized the importance of the trial court reaching a just and fair resolution of an attorney’s fees award:

5 Since Appellee later retained co-counsel, 630.3 hours similarly equates to two attorneys simultaneously working forty hours per week of non-duplicative time on this case and no other for almost two consecutive months.

Baruch v. Giblin, 164 So. 831, 833 (Fla. 1935). These words from our high court remain vibrant and applicable today. Under the abuse of discretion review standard applicable to the attorney’s fees award here, appellate judges “are not required to abandon what we learned as lawyers or our common sense in evaluating the reasonableness of an award.” Wolentarski,² So. 3d at 1057 (citing Ziontz v. Ocean Trail Unit Owners Ass’n, 663 So. 2d 1334, 1335 (Fla. 4th DCA 1993)). Applying the dictates and reasoning of Clayton, Schultz, Miller, Wolentarski, and Ziontz, we find that the trial court’s attorney’s fees award for this case is clearly unreasonable and constitutes an abuse of discretion. Accordingly, we reverse the final judgment awarding attorney’s fees and remand for further proceedings.

REVERSED and REMANDED for redetermination of the award of attorney’s fees.

WALLIS and EDWARDS, JJ., concur.