Higley South v. Quality Engineered Inst.

632 So. 2d 615, 1994 WL 3600
CourtDistrict Court of Appeal of Florida
DecidedJanuary 5, 1994
Docket92-00142
StatusPublished
Cited by7 cases

This text of 632 So. 2d 615 (Higley South v. Quality Engineered Inst.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higley South v. Quality Engineered Inst., 632 So. 2d 615, 1994 WL 3600 (Fla. Ct. App. 1994).

Opinion

632 So.2d 615 (1994)

HIGLEY SOUTH, INC., a Florida Corporation and Reliance Construction Company, a Florida Corporation, D/B/a Higley-Reliance, a Joint Venture and the Federal Insurance Company, a Foreign Corporation, Appellants,
v.
QUALITY ENGINEERED INSTALLATION INC., a Florida Corporation, Appellee.

No. 92-00142.

District Court of Appeal of Florida, Second District.

January 5, 1994.
Rehearing Denied February 23, 1994.

*617 Hala Sandridge of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellants.

Kevin A. McLean of McLean & Schecht, P.A., Tampa, for appellee.

RYDER, Judge.

We have for review seven issues raised by Higley South, Inc., Reliance Construction Company (Higley) and Federal Insurance Company concerning an award of attorney's fees to Quality Engineered Installation (Quality). We affirm in part, reverse in part, and remand to the trial court to redetermine the amount of Quality's attorney's fees in accordance with this opinion.

Higley was the contractor for the condominium project known as the Promenade. The owner of the project was Park Shore Development Co., Inc. One of the subcontractors on the job was appellee, Quality. Quality was responsible for the installation of the windows at the Promenade. Ultimately, the owner terminated the contractor, as well as the subcontractor, from the project. The owner completed its project with another general contractor.

At the time Quality was terminated from the project, it was owed approximately $160,000.00-$17p,000.00 for the work completed with its agreement with Higley. Quality retained the services of an attorney, Louis Stolba, to sue Higley for this amount. A lawsuit was filed by Quality against Higley and Higley's surety, Federal Insurance Company. Higley and the surety then moved to compel arbitration. Arbitration was ordered by the trial court. Appellants subsequently requested consolidation of all the arbitration proceedings involving the project. Stolba's firm, representing Quality, moved to dismiss the complaint seeking consolidation. The trial court granted Quality's motion to dismiss the complaint and Higley and the surety appealed to this court. Stolba appeared on behalf of Quality.`The case was reversed on appeal and remanded to the trial court for further proceedings on the issue of consolidation. Higley-South, Inc. v. Park Shore Development Co., Inc., 494 So.2d 227 (Fla. 2d DCA 1986). No order was entered by this court awarding Stolba attorney's fees for this losing appeal. On remand, the lower court consolidated all of the arbitration proceedings.

Shortly thereafter, Higley and Quality, including their respective sureties, entered into a corporation agreement. Pursuant to this agreement, appellants advanced to Quality the sum of $100,000.00 "to be applied in partial satisfaction of the claims raised by" Quality against Higley. Quality used this payment to satisfy a portion of its debt to Stolba for outstanding legal services owed by Quality to Stolba's firm. After receiving the payment, Stolba withdrew from further representation of Quality in the claim set for arbitration because Quality could no longer pay his bills. Stolba did not continue to represent Quality on a contingency basis because, in his professional opinion, the risk was too high.

Quality then began a search for a new attorney to represent it in the arbitration. Initially, Quality retained an attorney, David Ross, to review the file to determine whether he would represent Quality. Ross rejected representation of Quality because Quality could not pay his bills. Ross testified that he would not take this case on a contingency basis because he was not optimistic as to the chance of success, partly because of claims against Quality arising out of the project for one to two million dollars. He was also not in a position to become involved in a nine-to-twelve-week arbitration.

Around the first day of arbitration, Quality retained new counsel to represent it; Leon Williamson, Neil Schecht and Kevin McLean. The attorneys were retained by Quality around May 24, 1988. At that time, no written agreement concerning payment of fees was signed. There was a verbal agreement *618 that Williamson, Schecht and McLean would represent Quality on a contingency fee basis for 35% of any recovery received. This was reduced to writing on October 11, 1988.

Quality was bonded by Reliance Insurance Company; Mr. Jurado was a guarantor on the bond. Mr. Jurado agreed to pay McLean and Schecht an hourly rate to defend the claims against Quality covered by the bond. Williamson was not paid on an hourly basis, apparently because he was in-house counsel for Mr. Jurado's company. McLean and Schecht received a combined total of approximately $26,000.00 from Mr. Jurado for their defense of these claims. The $26,000.00 represented only a portion of the total hours expended by McLean and Schecht in representing Quality in the arbitration at a reduced hourly rate of $80.00 per hour for McLean and $50.00 per hour for Schecht. There existed no written requirement that Quality's attorneys return this $26,000.00 payment to Jurado. Quality had no knowledge of the arrangement between McLean and Schecht and Jurado.

At arbitration, Quality's counsel accepted the opportunity presented by the arbitrators, and by agreement of all counsel, to only be present at the arbitration when issues concerning Quality's work was being discussed, and when necessary to present Quality's claim. Counsel for another contractor recalled McLean's presence at the arbitration approximately 10 to 15% of the time. McLean's daily calendar for the months of the arbitration revealed that he intended on his calendar to be present only seven days out of the four-month period of the arbitration. However, Quality's president, Mr. Aschi, attended the hearings and discussed the day's testimony and exhibits with Quality's attorneys every day after the hearings.

Ultimately, an award was rendered which, among other things, awarded Quality approximately $83,000.00. This amount included prejudgment interest and equaled the $60,000.00-$70,000.00 amount which Quality believed was owed on the contract. The arbitrators also awarded Quality attorney's fees as follows: "[r]eimbursement of reasonable legal fees for legal services necessary to prepare and present the Quality Engineered Installation, Inc.'s claim."

Thereafter, Quality moved to confirm the arbitration award and requested the trial court to award fees "for which entitlement was given by the arbitration award." In further proceedings before the trial court, the court refused to award fees to Quality because, at that time, the prevailing law in this district did not permit an award of fees for time spent in arbitration. Quality, as well as the other claimants in the arbitration, appealed the trial court's decision to this court. Prior to a rendition of the order in that appeal, we decided Fewox v. McMerit Construction Co., 556 So.2d 419 (Fla. 2d DCA 1989) (en banc), approved sub. nom., Insurance Company of North America v. Acousti Engineering Co. of Florida, 579 So.2d 77 (Fla. 1991). In Fewox, we reversed our previous position which prohibited attorney's fees for time spent in arbitration. In light of our change in position, we also held, in Quality's appeal, that fees were available for time spent in arbitration. Because of conflict with other districts, we certified this matter to the Florida Supreme Court. The supreme court upheld our decision in Fewox. Acousti, 579 So.2d 77.

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Bluebook (online)
632 So. 2d 615, 1994 WL 3600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higley-south-v-quality-engineered-inst-fladistctapp-1994.