PHILIP MORRIS USA INC. v. ROBERT A. GORE, SR., Individually and as Personal Representative of the ESTATE OF GLORIA H. GORE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PHILIP MORRIS USA INC.,
Appellant,
v.
ROBERT A. GORE, SR., individually, and as Personal Representative of
the ESTATE OF GLORIA H. GORE,
Appellee.
No. 4D20-932
[April 13, 2022]
Appeal and cross-appeal from the Circuit Court for the Nineteenth
Judicial Circuit, Indian River County; Janet Croom, Judge; L.T. Case No.
312008CA010052.
David M. Menichetti and Geoffrey J. Michael of Arnold & Porter Kaye
Scholer LLP, Washington, D.C., and Terri L. Parker of Shook, Hardy &
Bacon LLP., Tampa, for appellant.
Andrew A. Harris and Grace Mackey Streicher of Harris Appeals, P.A.,
Palm Beach Gardens, and Jason L. Odom of Gould, Cooksey, Fennell, P.A.,
Vero Beach, for appellee.
KLINGENSMITH, J.
Appellant Philip Morris USA, Inc. (“Philip Morris”) appeals numerous
issues, including a final judgment awarding appellee Robert A. Gore, Sr.,
(“Gore”) as personal representative of the Estate of Gloria H. Gore,
$2,515,086.53 in attorney’s fees and related expert costs in an Engle
progeny action pursuant to a Proposal for Settlement. Gore cross-appeals
the trial court’s reduction in the attorney’s fees and costs awarded from
the sums requested. We reverse the attorney’s fees award against Philip
Morris and remand this matter to the trial court to award a reasonable fee
pursuant to Gore’s Proposal for Settlement that does not include
duplicative amounts which Gore has already been paid or awarded for
pursuing the claims against any co-defendants. We affirm on all other
issues raised in both the appeal and cross-appeal.
Procedural History
In 2008, Gore filed an Engle progeny action against Philip Morris and
R.J. Reynolds Tobacco Company (“Reynolds”) for wrongful death damages
following the death of his wife. The next year, Gore served proposals for
settlement (“PFS 1”) on both Philip Morris and Reynolds, offering to resolve
all claims in the amount of $250,000.00. These proposals were not
accepted. The case proceeded to trial in 2014; however, it resulted in a
mistrial. Before the re-trial, Gore again served proposals for settlement
(“PFS 2”) on both defendants. Neither party accepted, and the case went
to a second trial.
The jury returned a verdict in favor of Gore, awarding him
compensatory damages of $2 million, which the trial court reduced by
comparative fault. Philip Morris and Reynolds appealed the judgment, and
Gore cross-appealed, arguing the trial court erred by applying comparative
fault to reduce his compensatory damages. This Court affirmed on Philip
Morris and Reynolds’ appeal but reversed on Gore’s cross-appeal. See
Philip Morris USA Inc. v. Gore, 238 So. 3d 828 (Fla. 4th DCA 2018). On
remand, the trial court entered judgment in favor of Gore for the original
jury verdict of $2 million.
After the judgment, Gore moved for an award of attorney’s fees and
costs pursuant to his two rejected PFSs. He requested over $5.6 million
in attorney’s fees stemming from over 7,000 hours expended by his legal
team. Before the evidentiary hearing on costs and fees, Reynolds settled
Gore’s attorney’s fees claim against them (“Reynolds’ settlement”).
Following this settlement, Philip Morris served Gore with discovery to
disclose the terms of the Reynolds’ settlement.
Gore and Philip Morris stipulated to the total number of hours Gore’s
attorneys were entitled to recover, agreeing to 6,266.38 hours. They also
stipulated to the hours of a specific attorney, Lester Kaney, agreeing he
worked 198.9 hours. At the evidentiary hearing, Gore presented the
testimony of six trial attorneys and an attorney’s fees expert. He requested
$1,100.00 an hour for four attorneys, $750.00 an hour for six other
attorneys, and $500.00 for another three. However, on cross-examination,
many of Gore’s testifying attorneys admitted they typically charged less
than the amounts sought.
The trial court awarded Gore $1,964,424.75 in attorney’s fees and
$69,916.78 in expert costs against Philip Morris, for a total of
$2,034,341.53 (“Fees Order”). Although Gore requested the use of current
hourly rates to calculate the award, the trial court stated the rates must
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be “closely in line with rates in the approximate timeframe when the work
was performed” and used rates from 2008 to 2015. The trial court also
reduced the hourly rates of all of Gore’s attorneys based on the affidavits
of four of Gore’s attorneys who had submitted evidence of reasonable
hourly rates in an unrelated Engle progeny case, R.J. Reynolds Tobacco
Co. v. Koballa, 5D11-2914, 2012 WL 4052859 (Fla. 5th DCA Sept. 11,
2012), opinion withdrawn, 99 So. 3d 630 (Fla. 5th DCA 2012).
When the trial court issued its Fees Order, Philip Morris moved to apply
a setoff of the total fees award in the amount of the Reynolds’ settlement,
arguing a setoff was required under sections 46.015 and 768.041, Florida
Statutes (2020), to prevent Gore from receiving an unreasonable double
recovery. The trial court denied Philip Morris’ motion, finding the setoff
statutes did not apply to attorney’s fees or costs awarded pursuant to
Florida Rule of Civil Procedure 1.442 and Florida’s PFS statute, section
768.79, Florida Statutes (2020). The trial court then entered a final
judgment on attorney’s fees and costs, including prejudgment interest, in
the total amount of $2,515,086.53. This appeal and cross-appeal followed.
Application of sections 46.015 and 768.041 to motions to setoff
attorney’s fees
“Whether the trial court awarded a proper set-off is a pure question of law
reviewed de novo, and ‘no deference is given to the judgment of the lower
courts.’” Cornerstone SMR, Inc. v. Bank of Am., N.A., 163 So. 3d 565, 568
(Fla. 4th DCA 2015) (quoting D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314
(Fla. 2003)). The issue presented is whether a non-settling defendant in a
civil action is entitled to reduce an attorney’s fees award pursuant to a PFS
by the amount previously paid by a settling defendant toward their
separate PFS. The trial court denied Phillip Morris such a reduction after
analyzing sections 46.015 and 768.041.
Setoffs are generally governed by sections 46.015 and 768.041, both of
which require setoffs as to amounts received from a joint tortfeasor.
Grobman v. Posey, 863 So. 2d 1230, 1237 (Fla. 4th DCA 2003). “The set-
off provision in section 768.041(2) ‘was designed to prevent duplicate or
overlapping compensation for identical damages.’” Cornerstone SMR, 163
So. 3d at 569 (quoting Gordon v. Marvin M. Rosenberg, D.D.S., P.A., 654
So. 2d 643, 644 (Fla. 4th DCA 1995)).
Section 46.015 provides in relevant part:
(1) A written covenant not to sue or release of a person who
is or may be jointly and severally liable with other persons for
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a claim shall not release or discharge the liability of any other
person who may be liable for the balance of such claim.
(2) At trial, if any person shows the court that the plaintiff, or
his or her legal representative, has delivered a written release
or covenant not to sue to any person in partial satisfaction of
the damages sued for, the court shall set off this amount from
the amount of any judgment to which the plaintiff would be
otherwise entitled at the time of rendering judgment.
§ 46.015(1)–(2), Fla. Stat. (2020).
Nearly identical in its terms, Section 768.041 provides:
(1) A release or covenant not to sue as to one tortfeasor for
property damage to, personal injury of, or the wrongful death
of any person shall not operate to release or discharge the
liability of any other tortfeasor who may be liable for the same
tort or death.
(2) At trial, if any defendant shows the court that the plaintiff,
or any person lawfully on her or his behalf, has delivered a
release or covenant not to sue to any person, firm, or
corporation in partial satisfaction of the damages sued for, the
court shall set off this amount from the amount of any
judgment to which the plaintiff would be otherwise entitled at
the time of rendering judgment and enter judgment
accordingly.
§ 768.041(1)–(2), Fla. Stat. (2020).
The trial court correctly found the language in neither section 46.015
nor section 768.041 applied to provide a setoff for the attorney’s fees paid
by Reynolds. “When the statute is clear and unambiguous, courts will not
look behind the statute’s plain language for legislative intent or resort to
rules of statutory construction to ascertain intent.” City of Parker v. State,
992 So. 2d 171, 176 (Fla. 2008) (quoting Daniels v. Fla. Dep’t of Health,
898 So. 2d 61, 64 (Fla. 2005)). “The words of a governing text are of
paramount concern, and what they convey, in their context, is what the
text means.” Advisory Opinion to Governor re Implementation of
Amendment 4, The Voting Restoration Amendment, 288 So. 3d 1070, 1078
(Fla. 2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 56 (2012)).
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Sections 46.015(2) and 768.041(2) do not support Philip Morris’ motion
for a setoff, because they apply only to the “satisfaction of the damages
sued for.” The plain language of those statutes clearly specifies an
intention to apply to damages and not attorney’s fees. See Parker, 992 So.
2d at 176; Advisory Opinion, 288 So. 3d at 1078. In fact, the inclusion of
the word “damages” in the statute establishes that setoffs made pursuant
to those statutes can only apply to the category of compensation sued for—
the loss Gore sustained under his wrongful death claim. See Advisory
Opinion, 288 So. 3d at 1078–80 (quoting White v. Mederi Caretenders
Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774, 778 (Fla. 2017)) (“[U]nder
the expressio unius est exclusio alterius canon, ‘the mention of one thing
implies the exclusion of another.’”); Bidon v. Dep’t of Prof’l Regul., Fla. Real
Estate Com’n, 596 So. 2d 450, 452 (Fla. 1992). Because Gore sued for
compensatory damages, not for attorney’s fees, those statutes are
inapplicable when seeking a setoff for fees and costs awarded pursuant to
a PFS.
While we agree with the trial court’s interpretation of the foregoing
statutes as to whether they applied to provide a setoff for attorney’s fees,
the inquiry does not end there. In fact, to resolve the question presented,
we must also consider the language of the PFS statute.
Reasonableness of attorney’s fees awarded pursuant to section
768.79
The general rule, and one expressly recognized in the federal system,
requires the trial court to consider “reasonableness” when awarding fees
and costs. See Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004)
(quoting Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)) (“The primary
concern in an attorney fee case is that the fee awarded be reasonable, that
is, one that is adequately compensatory to attract competent counsel yet
which avoids producing a windfall for lawyers.”). Those federal courts
presented with analogous cases have held that when one defendant settles
with a plaintiff, but another defendant does not, the “non-settling
defendant is entitled to offset attorney’s fees owed by the amount already
paid by settling defendants.” Corder v. Brown, 25 F.3d 833, 840 (9th Cir.
1994); Bravo v. City of Santa Maria, 810 F.3d 659, 668 (9th Cir. 2016) (“[A]
district court abuses its discretion when it refuses to offset an award of
attorney fees by a settling defendant’s payment of those same fees.”). We
find the logic in the holdings of these cases to be persuasive in highlighting
the unfairness and unreasonableness of denying a reduction under such
circumstances.
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On this point, Florida’s PFS statute specifically provides that any fees
awarded pursuant to a rejected PFS must be “reasonable”:
768.79 Offer of judgment and demand for judgment.—
(1) 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 . . . .
...
(6)(b) If a plaintiff serves an offer which is not accepted by the
defendant, and if the judgment obtained by the plaintiff is at
least 25 percent more than the amount of the offer, the
plaintiff shall be awarded reasonable costs, including
investigative expenses, and attorney’s fees, calculated in
accordance with the guidelines promulgated by the Supreme
Court, incurred from the date the offer was served.
§ 768.79(1), (6)(b), Fla. Stat. (2020) (emphasis added).
Florida courts have generally viewed double recoveries and windfalls as
unreasonable. This is reflected throughout our jurisprudence. See
Minotty v. Baudo, 42 So. 3d 824, 833 (Fla. 4th DCA 2010) (quoting Montage
Grp., Ltd. v. Athle-Tech Comput. Sys., Inc., 889 So. 2d 180, 199 (Fla. 2d
DCA 2004)) (“A double recovery based on the same element of damages is
prohibited.”). MCI Worldcom Network Servs., Inc. v. Mastec, Inc., 995 So.
2d 221, 224 (Fla. 2008) (quoting Coop. Leasing, Inc. v. Johnson, 872 So.
2d 956, 958 (Fla. 2d DCA 2004)) (“[T]he purpose of compensatory damages
is to compensate, not to punish defendants or bestow a windfall on
plaintiffs.”). “[D]amages awarded should be equal to and precisely
commensurate with the injury sustained.” MCI Worldcom, 995 So. 2d at
224) (quoting Hanna v. Martin, 49 So. 2d 585, 587 (Fla. 1950)); Designs for
Vision, Inc. v. Amedas, Inc., 632 So. 2d 614, 615 (Fla. 2d DCA 1994); Besett
v. Basnett, 437 So. 2d 172, 173 (Fla. 2d DCA 1983); Homes by Deltona,
Inc. v. Outdoor Site Sols., LLC, 230 So. 3d 909, 911 (Fla. 5th DCA 2017);
Makar v. Gowni, 983 So. 2d 769, 772 (Fla. 5th DCA 2008); P & C Thompson
Bros. Constr. Co. v. Rowe, 433 So. 2d 1388, 1389 (Fla. 5th DCA 1983).
Even the setoff statutes, though they do not apply here, were designed
to further this principle by “prevent[ing] an award of double damages.”
Acadia Partners, L.P. v. Tompkins, 759 So. 2d 732, 739 (Fla. 5th DCA
2000). When a pretrial settlement with one defendant covers the very
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same fees and costs a plaintiff is trying to recover from the non-settling
defendant, reasonableness dictates that a party cannot recover the same
costs twice. See, e.g., Regan Roofing Co. v. Superior Court, 27 Cal. Rptr.
2d 62, 76 (Ct. App. 1994).
Gore argues that attorney’s fees and costs awarded pursuant to a PFS
is a sanction such that the deterrent principle at the heart of section
768.79 allows for a double recovery of fees. Although this statute was
indeed designed to deter unnecessary civil litigation and encourage
settlements, it was not intended to permit double reimbursement of
identical litigation expenses. Though section 768.79 does not specifically
address this scenario, nothing in the statute’s wording supports the
premise that the Legislature intended for the same litigation expenses to
be paid multiple times by separate parties—even as a sanction.
Likewise, no policy reasons exist for courts to permit a double recovery
in these cases. A litigant’s decision to pursue a claim in the face of a
rejected PFS does not hinge on the prospect of recovering attorney’s fees
multiple times for the same litigation activities. Nor would eliminating
duplicative fees payments significantly influence an attorney’s decision to
settle a civil suit. The potential prejudice to a non-settling party and the
perverse incentives that a double recovery would create, especially in the
context of a substantial fee settlement with another party, is obvious.
To avoid such windfalls, a court may consider the time expended by the
requesting party in litigating against the claims or defenses of each
opposing party when deciding the proper apportionment and reduction.
See Cassedy v. Wood, 263 So. 3d 300, 303–04 (Fla. 1st DCA 2019) (finding
“a party may be awarded fees pursuant to terms in a contract and section
768.79 simultaneously” where it appears that the contractual attorney’s
fee provision did not fully cover the reasonable value of fees incurred for
prosecuting the action); Vargas v. Hudson Cnty. Bd. of Elecs., 949 F.2d
665, 677 (3d Cir. 1991) (finding the trial court properly divided a fees
award “in the exercise of its discretion in appraising the respective roles of
all the defendants and their participation in this complex litigation”);
Corder v. Gates, 947 F.2d 374, 382 (9th Cir. 1991) (finding the time
expended by the plaintiff in pursuing each defendant may be considered
when deciding whether apportionment was proper).
We agree with Philip Morris that if a reduction is not permitted in cases
where fees are paid by other parties under separate proposals, the result
is an impermissible windfall which, under Florida’s jurisprudence, is
manifestly unreasonable. We therefore hold that because an attorney is
entitled only to a “reasonable” fee under the PFS statute when an award
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of fees is appropriate, the trial court must consider any fees and costs
previously paid by settling parties when fashioning an award and make
appropriate reductions to avoid a double recovery.
Trial court’s adjustment of attorney’s hours and rates
In his cross-appeal, Gore argues the trial court abused its discretion by
re-setting the hourly rate for four of his attorneys based on a consideration
of the hourly rates in an unrelated case. He also asserts the trial court
abused its discretion by disregarding the parties’ stipulation as to attorney
Kaney’s hours and reducing the number of his recoverable hours.
“[T]he trial court has ‘broad discretion’ to award fees; on appeal, this
court will reverse a fee award only if there has been an abuse of discretion.”
Schmitz v. Schmitz, 891 So. 2d 1140, 1141–42 (Fla. 4th DCA 2005).
Discretion is abused “when the judicial action is arbitrary, fanciful, or
unreasonable, which is another way of saying that discretion is abused
only where no reasonable man would take the view adopted by the trial
court.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). “If
reasonable men could differ as to the propriety of the action taken by the
trial court, then it cannot be said that the trial court abused its discretion.”
Id.This issue is one we have previously considered in a recent case, El
Brazo Fuerte Bakery 2 v. 24 Hour Air Service, Inc., 330 So. 3d 552 (Fla. 4th
DCA 2021). There, the plaintiff moved to determine the amount of
attorney’s fees and expert costs to which it was entitled. Id. at 554. The
county court found the plaintiff’s attorneys were entitled to the hours
which its expert had opined were reasonable but only at a rate one-half of
what its expert believed was reasonable. Id. at 555.
“While trial courts are not bound by expert opinions provided at
evidentiary hearings or by attorney [testimony] submitted at such
hearings, they may only reduce attorneys’ fees that they deem to be
excessive if they make specific findings to support that determination.” Id.
at 556 (quoting Lizardi v. Federated Nat’l Ins. Co., 322 So. 3d 184, 189
(Fla. 2d DCA 2021) (emphasis in original). We noted that in Lizardi, where
the trial court had not made specific findings as to why it had reduced the
requested number of hours or hourly rate, the Second District held:
Had the trial court . . . made specific findings as to why it
reduced the requested number of hours or hourly rate, the
order would have likely satisfied Rowe’s requirements. . . .
But the order as written, merely stating the hourly rate and
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reasonable number of compensable hours without any
elucidation as to why those figures were used instead of the
requested figures, does not comport with the requirements of
Rowe.
Id. (emphasis in original).
As the court in Westaway v. Wells Fargo Bank, N.A. for Carrington
Mortgage Loan Tr., Series 2007-RFC1, Asset-Backed Pass through
Certificates, 230 So. 3d 505 (Fla. 2d DCA 2017), also explained:
[W]hen evaluating the reasonableness of a requested fee
award, judges should not abandon what [they] learned as
lawyers or [their] common sense. . . . [W]e cannot affirm the
[circuit] court’s award when the record is totally devoid of any
evidence to support a conclusion that the award was
reasonable. [T]he [circuit court] did not indicate that her
determination of reasonable hourly rates was rooted in her
experience as a lawyer, nor did she explain why the varying
rates that she applied were more reasonable than the single
rate that [the defendant’s] attorneys proposed (and all of the
evidence adduced at the fee hearing supported). [The circuit
court’s] only apparent justification for reducing the hourly
rate was her personal opinion of what attorneys should charge
based on their number of years in practice. This alone does
not constitute competent, substantial evidence.
Id. at 508–09 (internal citations and quotation marks omitted) (quoting
D’Alusio v. Gould & Lamb, LLC, 36 So. 3d 842, 846 (Fla. 2d DCA 2010)).
We find the trial court did not err in setting the attorney’s fees rates by
applying her experience and knowledge gained as a judge while presiding
over similar cases. See Nunez v. Allen, 292 So. 3d 814, 820 (Fla. 5th DCA
2019); see also Miller v. First Am. Bank & Tr., 607 So. 2d 483, 485 (Fla. 4th
DCA 1992) (“The existence of such evidence does not require that we
abandon our own expertise, much less our common sense.”). However, as
to attorney Kaney’s hours, the parties agreed to the proper number to be
considered, and nonetheless, the trial court went outside of the record
evidence and disregarded this stipulation. See Giovanini v. Giovanini, 89
So. 3d 280, 282 (Fla. 1st DCA 2012) (“[A]bsent a stipulation by the parties,
the reasonableness and the necessity of the fee sought should have been
determined at a hearing.”). Without a compelling reason to do otherwise,
the trial court should not have disturbed that agreement. See Lift v. Lift,
1 So. 3d 259, 261 (Fla. 4th DCA 2009) (“Because appropriately made
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stipulations entered into by the parties are generally binding on the court
as well as on the parties, the court erred in failing to follow them.”).
Conclusion
We reverse the attorney’s fees award against Philip Morris and remand
this matter to the trial court to award a reasonable fee pursuant to Gore’s
PFS that does not include duplicative amounts which Gore has already
been paid or awarded for pursuing the claims against any co-defendants.
For this determination, the trial court shall use the parties’ stipulated
attorney hours when making those reductions. We affirm on all other
issues raised in both the appeal and cross-appeal not specifically
addressed herein.
Reversed and remanded with instructions.
KUNTZ, J., concurs.
ARTAU, J., concurs in part and dissents in part with an opinion.
ARTAU, J., concurring in part and dissenting in part.
I respectfully dissent in part because the majority impermissibly
reaches an issue that was not challenged on appeal—the reasonableness
of the attorney fee award. The appellant made it abundantly clear on the
first page of its brief that it “does not challenge the trial court’s exercise of
its discretion in determining the reasonable amount of fees that [the
appellee] incurred.” Indeed, the appellant had stipulated below to the
reasonable number of hours expended by the appellee, leaving in dispute
only the reasonable hourly rates of all but four timekeepers.
“A stipulation properly entered into and relating to a matter upon which
it is appropriate to stipulate is binding upon the parties and upon the
Court.” Gunn Plumbing, Inc. v. The Dania Bank, 252 So. 2d 1, 4 (Fla. 1971).
As this court explained in Polyglycoat Corp. v. Hirsch Distributors, Inc., 442
So. 2d 958 (Fla. 4th DCA 1983), “[w]hen points, positions, facts, and
supporting authorities are omitted from the brief, a court is entitled to
believe that such are waived, abandoned, or deemed by counsel to be
unworthy.” Id. at 960.
While I would agree that a trial court should exercise its discretion in
fashioning a reasonable attorney fee award that does not include attorney
time spent litigating claims against other parties, the appellant waived this
issue by stipulating below to the reasonable number of attorney hours
expended by appellee in litigating this case against it. Consequently, the
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appellant did not challenge the reasonableness of the attorney fee award
on appeal as conceded in its brief. Instead, the appellant chose to limit its
challenge on appeal to the issues upon which I concur with the majority—
the enforceability of the offer of judgment and the trial court’s rejection of
its entitlement to a statutory setoff. We should also limit our review to
those issues and affirm the trial court’s judgment.
* * *
Not final until disposition of timely filed motion for rehearing.
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