AVRA JAIN v. BUCHANAN INGERSOLL & ROONEY PC, etc.

Third District Court of Appeal
State of Florida
Opinion filed December 1, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1529
Lower Tribunal No. 17-26857
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Avra Jain,
Appellant,
vs.
Buchanan Ingersoll & Rooney PC, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Michael A.
Hanzman, Judge.
Boies Schiller Flexner LLP, and Bruce A. Weil, Steven W. Davis, and
Marshall Dore Louis, for appellant.
White & Case LLP, and Raoul G. Cantero, James N. Robinson,
Zachary B. Dickens, and W. Dylan Fay, for appellees.
Before EMAS, MILLER and GORDO, JJ.
EMAS, J.
INTRODUCTION
Avra Jain appeals from a final judgment awarding attorney’s fees in
favor of attorney Richard Morgan, based upon Morgan’s offer of judgment.
For the reasons that follow, we affirm.
BACKGROUND
Jain filed a legal malpractice suit against her former attorney, Richard
Morgan, and Morgan’s law firm, Buchanan Ingersoll & Rooney, PC (“the
Firm”). The only claim alleged against the Firm was for respondeat
superior/vicarious liability. Both Morgan and the Firm were represented by
the law firm of White & Case LLP.
During the pendency of the litigation, Morgan served an offer of
judgment to Jain pursuant to section 768.79, Florida Statutes (2018). The
Firm did not join in the offer of judgment or serve its own offer. At the
conclusion of the litigation, the trial court entered final judgment in favor of
Morgan and the Firm.
Morgan moved for an award of attorney’s fees on the basis of his offer
of judgment. Jain contended that Morgan was not entitled to fees under
section 768.79 because Morgan himself did not incur any fees, given the fact
that the Firm was contractually obligated to indemnify, and did indemnify,
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Morgan. Jain requested, alternatively, that the court trial apportion the fees
between Morgan and the Firm.
Following a hearing, the trial court determined that Morgan was entitled
to his fees because section 768.79 permits recovery of fees “incurred on the
defendant’s behalf,” and thus the analysis was unaffected by the fact that
Morgan may not himself have been contractually obligated to pay his
attorney for legal services. Finally, the court found that apportionment was
not appropriate in this case because the fees incurred in defending both
Morgan and the Firm were the same.
The trial court entered a final judgment awarding fees to Morgan, and
this appeal followed.
STANDARD OF REVIEW
While the trial court’s award of attorney’s fees is generally reviewed for
an abuse of discretion, the trial court’s construction or interpretation of a
statute in determining entitlement to fees is a pure question of law, which we
review de novo. Burton Family P’ship v. Luani Plaza, Inc., 276 So. 3d 920(Fla. 3d DCA 2019).
ANALYSIS
The argument advanced by Jain, both below and here on appeal, is
that because Morgan himself never incurred any attorney’s fees, and none
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were incurred on his behalf, he is not entitled to recover fees under section
768.79. While we agree with Jain that Morgan himself did not incur
attorney’s fees, we disagree with Jain’s contention that attorney’s fees were
not incurred on his behalf.
We begin with the relevant statute. Section 768.79(1) provides, in
pertinent part:
In any civil action for damages filed in the courts of this state, if a
defendant files an offer of judgment which is not accepted by the
plaintiff within 30 days, the defendant shall be entitled to recover
reasonable costs and attorney's fees incurred by her or him or
on the defendant's behalf pursuant to a policy of liability
insurance or other contract from the date of filing of the offer if
the judgment is one of no liability or the judgment obtained by the
plaintiff is at least 25 percent less than such offer, and the court
shall set off such costs and attorney's fees against the award.
(Emphasis added).
It is undisputed that: Morgan made an offer of judgment to Jain; the
offer was never accepted by Jain; and the judgment was one of no liability.
The only question is whether, pursuant to the above provision, the costs and
attorney’s fees were “incurred . . . on the defendant’s behalf” under a policy
of liability insurance or other contract.
The record establishes that, although Morgan himself may not have
been obligated to pay any attorney’s fees or costs, such fees and costs were
incurred on his behalf by the Firm, pursuant to a contract.
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For example, the retainer agreement between White & Case and
Morgan provided that, although White & Case is engaged to represent both
Morgan and the Firm, Morgan “will not be obligated to pay [White & Case’s]
fees and costs” because White & Case “executed a similar retainer
agreement with the Firm, and both the Firm and Morgan executed a letter
agreement indicating their understanding that [White & Case] would
represent them both and that the Firm “has agreed to pay [White & Case’s]
fees and disbursements relating to the Joint Representation and agrees to
accept full responsibility for such fees and disbursements as allocated in
[White & Case’s] monthly bills.” In addition, the Firm’s by-laws demonstrated
that the Firm was obligated to indemnify Morgan and pay for attorney’s fees
and costs incurred by Morgan as a result of the lawsuit by Jain. 1
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The relevant by-law provided:
(a) The Corporation shall indemnify to the full extent not
prohibited by law . . . any person made, or threatened to be
made, a party to or otherwise involved in (as a witness or
otherwise) an action, suit or proceeding . . . by reason of
the fact that he or she is or was a director or officer or
shareholder or attorney employee . . . against all expenses
and liability actually incurred, including, without limitation,
judgments, amounts paid or to be paid in settlement of
actions and costs of defense . . . .
(b) Expenses incurred by such a person in defending any such
action, suit or proceeding . . . shall be paid by the
Corporation in advance of the final disposition of such
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Thus, the fact that the Firm was contractually obligated to indemnify
Morgan and to pay for the legal services provided by White & Case on behalf
of Morgan means that those expenses were incurred by the Firm “on behalf
of Morgan” as required under section 768.79(1). The analysis here is
unaffected by the fact that White & Case also provided legal services in
defending the Firm as a defendant in the lawsuit.
Jain suggests that White & Case was primarily representing the Firm,
and that the defense of Morgan was merely secondary, incidental to, and
subsumed by, the defense of the Firm. Indeed, Jain’s expert witness opined
that “there was virtually no additional work required in order to represent Mr.
Morgan individually.” However, and as the trial court noted, the reverse of
that statement would be true as well, that “there was virtually no additional
work required in order to represent the Firm vicariously.” In other words, if
the Firm had not been named as a defendant, White & Case would have
performed precisely the same legal work it provided with both Morgan and
the Firm as named defendants. It is undisputed that the Firm was sued under
a theory of respondeat superior, by which the Firm’s potential liability in the
action was vicarious, based upon the alleged acts and conduct of Morgan,
action, suit or proceeding upon receipt of an undertaking
by or on behalf of such person . . . .
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its attorney-employee. Without a finding of liability against Morgan, no
liability could be imposed upon the Firm. As the final judgment indicated,
“regardless of whether either Defendant was ‘primary’ or ‘secondary,’ all of
the claims were exactly the same, the theories of liability were the same, the
damages sought against both Defendants were the same, and the evidence
was the same. There is no work in this case attributable [to the Firm] and
not Morgan, or attributable to Morgan and not [the Firm].”
In Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 208
So. 3d 718 (Fla. 3d DCA 2015), this court considered a trial court order
denying Key West Seaside’s (“Seaside”) motion for attorney’s fees and costs
under the offer of judgment statute. Seaside, the owner of a condominium
project, was sued by a subcontractor and was represented by the same law
firm representing several other related defendants, including the general
contractor. Ultimately, judgment was entered in favor of Seaside because
Seaside had paid what it owed to the general contractor. When Seaside
moved for attorney’s fees and costs pursuant to its offer of judgment, the trial
court denied the motion, in part because the attorney’s fees had been billed
to and paid by the general contractor, pursuant to an indemnification
agreement between Seaside and the general contractor. This court
reversed, holding: “The fact that another party or a nonparty may have paid
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the offeror’s attorney’s fees is of no consequence to the question of whether
the offeror is entitled to fees and costs pursuant to the offer of judgment
statute or rule.” Id. at 721. See also Aspen v. Bayless, 564 So. 2d 1081(Fla. 1990) (holding that a party may recover costs when the funds used to
pay the costs were furnished by a third person without any obligation of
repayment); Balseca v. Callies Elec., Inc., 566 So. 2d 322 (Fla. 3d DCA
1990) (same).
CONCLUSION
Because the attorney’s fees and costs were “incurred. . . on the
defendant’s behalf,” the trial court properly found entitlement and awarded
attorney’s fees in favor of Morgan in light of his status as prevailing party
under the offer of judgment.
Affirmed.
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