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Labaton v. Mellert12/13/2000
ON REHEARING
Appellant has filed a motion for rehearing, motion for rehearing en banc, motion to certify and a motion to stay mandate. We grant the motion for rehearing in part to correct a factual inaccuracy in the original opinion, withdraw the original opinion, and substitute the following. We deny the motions in all other respects.
We are compelled to affirm the amended final judgment herein as the record before the trial court does not justify the conclusion that it abused its discretion, and there is extant authority for the action it took. See, e.g., Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993); Collins v. Wilkins, 664 So. 2d 14 (Fla. 4th DCA 1995); Kaufman v. MacDonald, 557 So. 2d 572, 573 (Fla. 1990).
The amended final judgment recites, in part:
This matter is before the Court upon application of counsel for Plaintiff for an award of attorney fees. Plaintiff, Denisha Mellert, filed suit against Defendant Issac Labaton for injuries suffered as a consequence of tripping over the exposed metal protruding from a concrete parking space bumper in the parking lot in which Defendant Labaton maintained a place of business. Plaintiff David Mellert sought recovery for loss of consortium as a result of his wife's injuries. Testimony presented to a jury resulted in a verdict for Plaintiffs.
On June 11, 1996, Plaintiffs offered, pursuant to F.S. 768.79, to settle the entire case for a total sum of $75,000. At the time the settlement offer was made, there was only a single defendant. The offer was declined and Plaintiff, in response to issues raised by counsel for Issac Labaton, added three Florida corporations as defendants. On March 30, 1999, upon conclusion of lengthy, contested pretrial litigation and a jury trial of several days, a verdict totaling $129,410.74 was entered against Labaton. Judgment thereon was entered on April 5, 1999, with a reservation to address the issue of assessment of attorney fees. On July 21, 1999, the Court received conflicting testimony from expert witness retained by counsel for the respective parties. In addition, the Court reviewed the contents of the official court file and personal notes taken during the course of the trial.
The Court is satisfied the Plaintiff had a difficult case from the inception of her injury. Trip and fall cases are viewed with a great deal of skepticism by the general public, personal injury attorneys, insurance companies and, most importantly, by juries. The likelihood of Plaintiffs prevailing was, in the opinion of his expert witness, very slim. Counsel for Plaintiffs was required to finance the litigation with his separate resources with the probability of reimbursement directly linked to the results of the litigation.
The Court has reviewed the detailed billings of Plaintiffs' counsel and finds them to be reliable. While there may be some minor discrepancies, the billings, when read as a whole, do not reflect either excessive charges or unnecessary activity. On the contrary, it appears to the Court as though Plaintiffs' counsel did not charge for all the work necessitated by the response of Defendants to this litigation.
The Court expressly finds:
A. a reasonable hourly rate for a trial attorney of the skills of Plaintiffs' counsel, D. Fredrico Fazio and his partner, Scott DiSalvo, is $400.
B. the nature of this claim entitles Plaintiffs' counsel to a multiplier of 2.0 as it was more likely than not, when he took on the case, the ultimate verdict of a jury would be in favor of Defendants.
C. the reasonable number of hours allowed for Mr. Fazio and Mr. DiSalvo combined is 491.
Page 1 2 Florida Personal Injury Attorneys
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