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Trial Practices, Inc. v. Hahn Loeser & Parks, LLP

Florida Court of Appeals, Second District

October 25, 2017

TRIAL PRACTICES, INC., Appellant,
v.
HAHN LOESER & PARKS, LLP, as Substitute party for Jack J. Antaramian, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Herbert J. Baumann, Jr., Judge.

          G. Donovan Conwell, Jr., of Conwell Business Law, P.A., Tampa, for Appellant.

          Edmond E. Koester of Coleman, Yovanovich & Koester, P.A., Naples, for Appellee.

         BY ORDER OF THE COURT:

         Upon consideration of the appellant's motion for clarification filed April 27, 2017, it is

         ORDERED that the appellant's motion for clarification is granted as it relates to the issues of the trial court's cost award including reimbursement for payments made to fact witnesses for their assistance with case and discovery preparation. The appellant's motion to certify questions of great public importance is granted in part. However, we deny both the appellant's motion for rehearing and motion for rehearing en banc. Accordingly, we withdraw our prior opinion of April 12, 2017, and substitute this opinion in its place.

          MORRIS, JUDGE.

         Trial Practices, Inc. (TPI), appeals a final judgment awarding attorneys' fees, costs, and prejudgment interest to Hahn Loeser & Parks, LLP (Hahn), as substituted for Jack J. Antaramian who is deceased. The underlying litigation began when TPI brought suit against Antaramian to recover fees it alleged it was owed for various trial support services that TPI provided to Antaramian in his suit against a third party. Antaramian successfully defended against TPI's suit, and as a result, he sought prevailing party attorneys' fees and costs in the trial court.[1] Ultimately, the trial court awarded him prevailing party attorneys' fees, costs, and prejudgment interest.

         On appeal, TPI argues that the trial court erred by awarding attorneys' fees and costs for litigating the amount of attorneys' fees. As will be discussed herein, we disagree with that argument and we therefore affirm that portion of the award. TPI also argues that Hahn is not entitled to prevailing party attorneys' fees because Antaramian improperly paid expert witness fees to fact witnesses. And TPI challenges the inclusion of overhead expenses within the cost award. While we find no error in the trial court's ultimate conclusion regarding the propriety of payments to the fact witnesses for their assistance with case and discovery preparation or in the trial court's award of costs for overhead expenses to Antaramian's attorneys, we conclude that the trial court's failure to itemize an award of $317, 873.64 within the overall cost award requires reversal. We also agree with TPI that the trial court erred in awarding prejudgment interest running from the time the attorneys' fees and costs were incurred rather than from the time when they were awarded. Additionally, it is unclear whether the prejudgment interest award was based, in part, on disallowed office overhead expenses. Consequently, we must reverse the trial court's prejudgment interest award. We affirm all other issues without further comment.

         BACKGROUND

         In August 2005, TPI entered into its contract with Antaramian to perform litigation support services in Antaramian's lawsuit against a third party (the "Consulting Agreement"). TPI was required to assist Antaramian and his counsel in preparing for trial and in presenting the case during trial. The Consulting Agreement required Antaramian to compensate TPI five percent of any gross recovery that Antaramian obtained as a result of a verdict in his favor or settlement. Ultimately, Antaramian and the third party settled the lawsuit with each party agreeing to drop their claims against the other party. Thereafter, Antaramian refused to pay TPI the five percent fee pursuant to the Consulting Agreement under the theory that Antaramian did not obtain a gross recovery and, therefore, did not owe anything to TPI.

         In June 2006, TPI sued Antaramian for breach of the Consulting Agreement. The issue to be decided was whether Antaramian obtained a gross recovery through his settlement with the third party thereby obligating him to pay TPI its fee. The jury returned a verdict in favor of Antaramian. TPI appealed, but this court affirmed the final judgment.

         Antaramian then sought prevailing party attorneys' fees and costs pursuant in part to a provision in the Consulting Agreement. The provision provides in relevant part that the

prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys' and experts' fees.

         Antaramian sought $2, 551, 796.26, exclusive of prejudgment interest. After a hearing, the trial court granted Antaramian's motion, though in a reduced amount of $2, 004, 432.58. The trial court also awarded prejudgment interest in the amount of $462, 709.81 "from the date the attorneys' ...


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