by David M. Gersten
22nd Century Properties, LLC, et. al. v. FPH Properties, LLC,
No. 4D13-3537 (Fla. 4th DCA 2015)
Judge Robert Gross gives the reader a most informative and entertaining read on the issue of attorneys’ fees awards based on an offer of judgment pursuant to Section 768.79, Florida Statutes (2006). I am stepping out on a writer’s limb to state that the opinion is so well written that it transforms judicial prose into judicial poetry—indeed a hard feat given the subject matter of the opinion.
The case “arises from a real estate venture gone awry.” Apparently, the parties entered into a venture to develop properties for resale. Ultimately, the deal blew up when one partner falsified documents concerning finances and then mined the litigation landscape with stumbling blocks to prevent discovery by the other partner.
During discovery, the “appellants’ scheme unfolded like a peeled onion—each discovery request uncovered a new layer of the ploy.” The appellee had to file twenty-seven discovery motions, moved multiple times for contempt, and had to amend the complaint twice to encompass newly discovered evidence. Although the appellee moved to strike appellants’ pleadings based on fraudulent or deceptive discovery tactics, Trial Judge John J. Murphy, III, stood on the judicial decision making cliff but did not throw the pleading out. Instead, Judge Murphy entered an order excoriating the appellant:
[T]his court will not stand idly by and permit a party to file forged and fraudulent documents, to delay proceedings and to provide falsified responses to discovery requests . . . As such, this Court finds that [FPH] is entitled to recover reasonable attorneys’ fees for the extra work [it] had to undertake.
After the trial, the trial judge awarded over $1.5 million in damages. The damages were based on several causes of action. On appeal, the underlying judgment was affirmed without an opinion.
Meanwhile, two years before the bench trial, the plaintiff served the defendant with a demand for judgment pursuant to 768.79, Florida Statutes (2006), offering to settle the case for a cool $1 million. This set up a post-trial evidentiary hearing on attorneys’ fees where judge Murphy awarded appellee fees. This appeal followed.
The Law of Attorneys’ Fees
Judge Gross’ opinion takes the reader through a concise tour of the law of attorneys’ fees. The opinion touches upon a panoply of important issues like: burden of proof, evidence, expert testimony, interrelated causes of action, trial strategy, Florida Statute Section 768.79, “Lodestar,” proper and improper billing, results attained, and even the appellate court’s standard of review. Because the opinion is comprehensive and this article is limited in length, below is a highlight reel:
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