IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM v. CASE NO. 5D01-373

Transcription

1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001 OLDE DISCOUNT CORPORATION, Appellant, v. CASE NO. 5D JEFFREY A. AMSEL, ET AL., Appellee. / Opinion filed November 16, 2001 Appeal from the Circuit Court for Volusia County, Robert K. Rouse, Jr., Judge. Wayne H. Schwartz and William N. Nortman, of Atlas Pearlman, P. A., Fort Lauderdale, for Appellant. Robert Dyer, of Allen, Dyer, Doppelt, Milbrath & Gilchrist, Orlando, for Appellee, Jeffrey A. Amsel. PER CURIAM. Olde Discount Corporation appeals an award of attorney s fees made in favor of Jeffrey A. Amsel subsequent to an arbitration proceeding. We affirm the award of attorney s fees but agree with Olde that the trial court erred in awarding prejudgment interest on Amsel s fee from the date of the arbitration award. Interest should accrue only from the date the trial court determined that Amsel was entitled to fees as the prevailing party under Chapter 517, Florida Statutes. See Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So. 2d

2 929, 931 (Fla. 1996) (holding that interest accrues from the date the entitlement to attorney s fees is fixed through agreement, arbitration award, or court determination, even though the amount of the award has not yet been determined. ) Here, the issue of entitlement to attorney s fees was not fixed until the circuit court rendered its summary judgment on April 18, Accordingly, interest should accrue from that date. See Dean Witter Reynolds, Inc. v. Wood, 676 So. 2d 464, 466 (Fla. 5th DCA 1996). AFFIRMED IN PART AND REMANDED. COBB, J., CONCURS. PLEUS, J., CONCURS AND CONCURS SPECIALLY WITH OPINION ORFINGER, R. B., J., CONCURS AND CONCURS SPECIALLY WITH OPINION. 2

3 Case No. 5D PLEUS, J., concurring and concurring specially. I write to concur in the opinion of this court only to discuss what I perceive to be the main issue in this case. The case involves the churning of a stock brokerage account in violation of Chapter 517. The main issue is whether the trial court erred as a matter of law by applying a multiplier of two to the lodestar award of attorney s fees. 1 There really is no dispute over the lodestar amount. As lawyers and judges all know, the leading case on the use of a contingency multiplier to enhance the lodestar fee is Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990). In Quanstrom, Justice Overton set forth three categories of contingency fee cases. The first category, which applies in this case, 2 relates to public policy enforcement cases or cases which rely on statutes designed to encourage individual citizens to bring civil actions that enforce statutory policy. Clearly, Chapter 517 is statutory policy and section (6), which allows recovery of attorney s fees, encourages individual citizens to bring civil actions that enforce that policy. See also, LaFerney v. Scott Smith Oldsmobile, Inc., 410 So. 2d 534 (Fla. 5th DCA 1982). Later, in Lane v. Head, 566 So. 2d 508 (Fla. 1990), Justice Overton attempted to clarify his earlier opinion in Quanstrom. In a special concurrence, Justice Overton noted that enhancement in public policy enforcement cases should be limited to cases in which the 1 Chapter (6), Florida Statutes, allows for attorney fees to the prevailing party. 2 The other two categories, tort/contract cases and family law/eminent domain/estate trust cases, do not apply here.

4 applicant for a multiplier can establish that without adjustment for risk the prevailing party would have faced substantial difficulties in finding counsel in the local or other relevant market. The able trial judge in this case conducted an extensive hearing on attorney s fees and heard expert testimony which justifies a multiplier. Based on the testimony of respected expert witnesses, Judge Rouse determined the relevant market did require a multiplier in order for a plaintiff to obtain competent counsel. The relevant factors in this case which demonstrate need for a multiplier are: 1. It is difficult to prove fraud in securities cases such as this case. 2. The amount of damages is difficult to establish and the amount of the award is often small. 3. Cases such as this one frequently result in rigorous defenses. 4. Cases must proceed first to arbitration. 5. The arbitration process is time-consuming. 6. There are few attorneys competent to take these cases. 7. Cases against brokerage firms require large outlays of costs which most lawyers cannot afford and are unwilling to advance. It was abundantly obvious to the trial court, as it is to me, that without the incentive of a multiplier, clients who have been victimized by violation of Chapter 517 may not be able to obtain legal services. The trial court correctly applied the appropriate multiplier. 2

5 ORFINGER, R. B., concurring and concurring speciallycase No. 5D I concur with the court s opinion because we are bound by Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990) and its progeny. However, if not so constrained, for the reasons set forth in City of Burlington v. Dague, 505 U.S. 557 (1992), I would hold that contingency multipliers should not be utilized in statutory fee-authorizing cases.