4 Fla. L. Weekly Supp. 226a
Attorney’s fees — Insurance — Insured entitled to attorney’s fees incurred in defending judgments entered in his favor against insurer’s motions to have judgments set aside and fees incurred in collecting, executing or obtaining satisfaction of judgments — Contingency risk multiplier applies to defense of post-judgment motions to have judgments set aside, but does not apply to time expended in furtherance of execution, collection or satisfaction of judgments — Insured awarded costs, expert witness fees, and interest
JERRY LOPEZ, Plaintiff, vs. FORTUNE INSURANCE COMPANY, Defendant. In the County Court for Sarasota County. Case No. 95-2777-CC-11. July 30, 1996. Emanuel LoGalbo, Jr., Judge. Counsel: Perry Tanksley, Sarasota, for Plaintiff. David G. Henry, Santos & Dutton, P.A., Tampa, for Defendant.
FINAL JUDGMENT FOR ATTORNEY FEES IN POST-JUDGMENT PROCEEDINGS
Plaintiff’s Amended Motion for Entry of Final Judgment for Attorney Fees and Costs, which was filed on June 13, 1996, was heard on July 11, 1996. The record reflects that the motion is directed to post-judgment proceedings brought by defendant to set aside each of the two judgments earlier entered against the defendant, and to efforts to obtain satisfaction of such judgments. On March 1, 1996, the Order Denying Relief from Judgment was executed by the court, finally adjudicating defendant’s post-judgment effort’s to have the judgments set aside. Upon hearing evidence and argument of counsel, and upon review of the record, and being otherwise advised in the premises, the Court finds that:
1. Plaintiff is entitled to recover a reasonable sum as fees or compensation for plaintiff’s attorney defending the judgments against defendant’s motions to have them set aside, pursuant to Fla.Stat. §627.428(1), and for his efforts in collecting, executing or obtaining satisfaction on the judgments.
2. The record reflects that, in the prior attorney fee judgment, this court specifically determined that a reasonable hourly rate for plaintiff’s attorney is $175.00 for the purpose of determining the lodestar fee. This court further determined that a contingency risk multiplier of 1.63 should be applied to the lodestar.
3. In the matter at bar, the plaintiff employed the same attorney from the beginning of the litigation through disposition of the post-trial proceeding. In setting the risk multiplier in the initial fee judgment, this court determined that at the time representation commenced, the probability of success was low. Because there was no change in representation and both the pre-judgment and post-judgment work were governed by a contingency arrangement, there is no reason to treat the post-judgment hours expended in defense of the attack on the judgments differently from the pre-judgment hours. Stack v. Lewis, 641 So.2d 969 (Fla.1st DCA 1994).
4. Based on the law of this case, the court finds that a contingency risk multiplier of 1.63 should apply to determination of the attorney fee for the post-trial proceeding; however, no risk multiplier should apply to that portion of plaintiff’s time expended solely in furtherance of execution, collection or obtaining satisfaction on the judgments.
5. The court must determine the hours reasonably expended. Mr. Tanksley testified and submitted his time records showing his actual expenditure of 41.6 hours of professional time on the relevant matters. The court also received the testimony of David N. Hand, Attorney at Law, of David N. Hand, P.A., as plaintiff’s expert witness. Mr. Hand testified that forty hours was a reasonable amount of time for a competent attorney to have expended in the post-judgment proceedings through satisfaction of the judgments. He based his opinion on a review of the court file, review of Mr. Tanksley’s office file, review of Mr. Tanksley’s time records, and review of time records produced by David Henry, defendant’s attorney. Finally, the court heard defendant’s expert witness, Douglas Lawless, Attorney at Law, who testified in his professional opinion that thirty to thirty five hours were reasonably expended by Mr. Tanksley on the relevant matters. Mr. Lawless also opened that a contingency risk multiplier should not apply in any event to that increment of Mr. Tanksley’s time reasonably expended on collection of the judgment.
6. Based upon the evidence, the court finds that Mr. Tanksley reasonably expended thirty three hours in the post-judgment proceeding litigating the motions to set aside, to which the contingency risk multiplier should apply, giving a lodestar attorney fee of $5,775.00. After application of the contingency risk multiplier, the enhanced lodestar is thus $9,413.25 as to that portion of his time.
7. The court also finds that Mr. Tanksley reasonably expended an additional four hours related to execution, collection and satisfaction of the judgment, to which no multiplier should apply, giving an additional increment of $700.00, for a total principal amount of attorney fees of $10,113.25.
8. Plaintiff became entitled to receive payment from defendant of the foregoing attorney fees on March 1, 1996, the date of the Order Denying Relief from Judgment, and such interest that has accrued to the date of this judgment should be added to the principal amount of the attorney fee award. Quality Engineered Installation v. Higley South, 670 So.2d 929 (Fla.1996). Such interest is at 10% per annum for 4 months and 21 days, for 3.9166% pre-judgment interest, or $396.10. This amount should become part of the single total sum due and owing. Id. at 931.
9. Plaintiff’s claim for payment of costs of $85.00 in court reporters fees in the post-trial proceeding, plus $40.00 additional for the attorney fee hearing, is denied.
10. The court also finds that Mr. Hand expected to be paid an expert witness fee for his time expended in preparation and testifying herein, and same shall be awarded. Stokus v. Phillips, 651 So.2d 1244 (Fla.2d DCA 1995). The court finds that Mr. Hand should be awarded such fee based on 2.50 hours of preparation time plus 1.50 hours expended at hearing, at an hourly rate of $200.00, for a total expert witness fee of $800.00.
Accordingly, it is
ADJUDGED that Plaintiff, JERRY LOPEZ, shall recover from Defendant, FORTUNE INSURANCE COMPANY, attorney fees in the principal amount of $10,113.25 plus pre-judgment
interest of $396.10, and expert witness fees of $800.00 for a total of $11,309.35, with interest at 10% per year for the remainder of the present calendar year, and thereafter subject to Florida Statutes §55.03(1) (1994) (variable rate); for which let execution issue.
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