IN THE CIRCUIT COURT OF THE l 7rn

JUDICIAL CIRCUIT IN AND FOR

BROWARD COUNTY, FLORIDA
MICHELE BARRY,
Plaintiff,

CIVIL DIVISION

v.

CASE NO. CACE-13-024231

DOLGENCORP, LLC d/b/a

DOLLAR GENERAL
Defendants.

SECOND FINAL JUDGMENT FOR ATTORNEY'S FEES AND COSTS

The Court, having heard argument of counsel, taken evidence, and being otherwise fully
advised in the premises The court has carefully observed those who have testified, evaluated
their candor and scrutinized their demeanor, resolved conflict in the testimony and considered all
exhibits placed in evidence and finds and enters judgment in this case as follows:
BACKGROUND
This case was a personal injury slip and fall case which was tried before the Court for six
days. On November 4, 2014, the jury in this case entered a verdict in favor of the Plaintiff
MICHELE BARRY, finding the Defendant DOLGENCORP, LLC 100% liable for her injuries,
in the amount of $250,087.00.
Prior to the trial, Plaintiff served a proposal for settlement to the Defendant for
$100,000.00, dated February 21, 2014. On December 1, 2014 this Court entered an order
granting entitlement to attorneys' fees pursuant to Florida Statutes 768.79 and Florida Rule of
Civil Procedure 1.442; this Court per the discretion afforded the Court per Sec. 57.105(1) entered
an order sanctioning the Defendant and its counsel dated December 1, 2014, Exhibit A, with
specific findings of fact found by the Court and enumerated findings in writing in the transcript
attached hereto as Exhibit B, both incorporated by reference hereto.[transcript page 61-94].

FINDINGS
In a review of :Exhibit B attached hereto, the Court addresses the following findings regarding
the fee

aw~lfd

pursuant to Florida Statute 57.l 05:

l. The conduct of defense counsel is sanctioned because it was unacceptable, abhorrent,

willful and contemptuous. In short, defense counsel argued in opening tha! Plaintiff sat in the
puddle after she fell for fifteen minutes, refused help offered by Defendant's employees waiting
in the liquid for her husband to come in and take pictures and that the DVD showed her moving
and bending over after the fall.[trial transcript vol. 2, page 221-223]. The defense and plaintiff
counsel stipulated to the entire store video of the Plaintiff in the store and same was placed in
evidence by stipulation and Plaintiff counsel explained at that time to the defense ''we're going
to play the store video you guys gave us". [trial transcript page 300-305] [Exhibit B page 68 and
64 respectively].

Defense counsel waited until after the DVD was admitted in evidence and

waited until after the DVD video was played to the jury and moved for a mistrial on a
nonexistent basis: an order in limine. Basically, the DVD contradicted much of what the defense
presented in opening statement about the Plaintiff~ s conduct after she fell.
2. The first problem for the defense is that they argued an order in limine that does not
exist. Motion in Limine number two dealt only with the other cameras that documented the
hazardous condition of having children pick up sports equipment and start playing soccer or
basketball down the aisle in the store. For the issue of notice of the admitted hazardous activity
to the defendant, the Court ruled that only the video of the

child~s

play before the fall were

relevant and admissible. The motion, argument and order only addressed the child's play video.

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3.

The second prnblem is that to move in limine after the video is in evidence and

played to the jury was untimely and in violation of the Court's trial order.
4. The third problem is that there is no legal basis for the motion for mistrial the defense
made at the time the video was played and which they continue to assert through the
December 1, 2014 hearing Exhibit B attached hereto. Any possibility that the false argument
made by the multiple defense counsel that there was a motion in limine and an order addressing
the video of the Plaintiff was a mistake, is devastated, destroyed, eviscerated, and rendered
nonsensical by the defense continued insistence and argument, first wanting a mistrial then
wanting sanctions then wanting a new trial even after the Plaintiff and the Court repeatedly point
out that there is no basis for their argument. Defense, we did have an unequivocal ruling saying
everything after the fall is not relevant from your Honor. We do have that on the record."
[Exhibit B page 61., line 10-12]. The Court then again pointed out that was not the ruling.[ Id
line 16 continuing to page 62, line 8]. Looking at Exhibit B, pages 61, 62, 63, and 69, line 10
through 14 [ ''it's our fourth argument on the motion" and "we are just trying to preserve the
record"] the only conclusion is that there are misrepresentations being repeated to the Court by
multiple defense counsel and it is not a mistake: it is shameful.

The defense record of

misconduct is preserved.
5.

The fourth problem is that at the time the defense first objected after the video tape,

they had already discussed in opening what they alleged the Plaintiff was doing after the fa.II:
turning down the employees trying to render aid, bending etc. So if they truly believed the video
could not be shown because the Comt had ordered that the conduct of the Plaintiff after the fall
was not relevant, then they intentionally violated the court order they thought in place by arguing
the conduct in opening. Obviously they knew no such order existed and sought to mitigate the

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damage caused by the conflict between the video and their opening statement by moving for a
mistrial and hoping the Court would accept their misleading, unfounded motion and argument.
Interestingly, the defense has sent in three different lawyers for these hearing perhaps trying to
avoiq. only one target for conduct that is sanctionable beyond F.S. 57.105 as direct contempt.
The Court makes the following findings in support of the fee award pursuant to Florida
Statutes 768. 79 and :Florida Rule of Civil Procedure l.442:
1. The then apparent merit or lack of merit in the claim.

This case was a slip and fall case in which liability was hotly contested by the Defendant.
The Plaintiffs primary injury in this case were two fractured vertebrae. Portions of the incident:
were also captured on video and depicted the Plaintiff falling on detergent through no fault of her
own. As the Fourth District Comt of Appeal acknowledged in Labaton v. 1Vfellert, 772 So. 2d
622, 623 (Fla. 4th DCA 2000), "[(!rip and fall cases are viewed with a great deal of skepticism

by the general public, personal injury attorneys, insurance companies and, inost importantly, by
juries." In Labaton the Fourth District Court of Appeal affirmed an award of attorneys' fees

pursuant to a proposal for settlement which exceeded the total recovery of the Plaintiff See Id. In
so holding, the Fourth District cited the fact that the trial was hotly contested, lasted several days~
and that counsel for Plaintiffs was required to finance the litigation with his own separate
resources with the probability of reimbursement directly linked to the results of the litigation. See
Id
2. The number and nature of offers made by the parties.

In this case both sides served proposals for Settlement. Defendant served proposals for
settlement in the amount of $10,000.00 on June 24, 2014, and for $40,000.00 on July 24, 2014.
Plaintiff served proposals for Settlement in the amount of $100,000.00 on February 21, 2014,

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$149,999.00 on April 24, 2014, and in the amount of $400,000.00 on July 31, 2014. Defendant
refused to accept any of Plaintiffs proposals for settlement which :increased as additional
evidence supporting liability and damages was obtained during discovery. Finally, by way of
letter to Defendant's counsel on August 21, 2014, Plaintiffs counsel offered to settle Plaintiff's
claim for $200,000.00; an offer which the Defendant also rejected. On November 4, 2014 after a
six day trial for which every aspect of the case was hotly contested, the jury returned a verdict
for the Plaintiff in the amount of $250,087.00.
Therefore, given the value of the case and the evidence supporting liability Plaintiffs
offers of settlement were reasonable and in good faith. See Nants v. Gr?ffzn, 783 So. 2d 363, 365
(Fla. 5th DCA 2001) ("[t]he question to be considered by the comi in determining if an offer of
judgment was made in good faith is whether the offer or proposal bears a reasonable relationship
to the amount of damages suffered and was a realistic assessment of liability").
3. The closeness of guestions of fact and law at issue.
The closeness of questions of fact and law were also of note in this case. While on its
face the case appeared to be a n01mal "slip and fall case" the Defendant aggressively asserted a
defense via summary judgment and at trial under Florida Statutes 768.0755 which only recently
went into effect in July of 2010. Furthermore, the theory of liability asserted by Plaintiff was
based on Florida Statutes 768.0755(b), alleging that a dangerous condition occurred regularly on
the subject premises in the form of unsupervised children repeatedly entering the store and
knocking over merchandise. At the time of the trial only one appellate opinion had addressed this
theory of liability under the new statute. See Feris v. Club Countly

<~l Fort

Walton Beach, Inc.,

138 So. 3d 53 l (Fla. 1st DCA 2014). Moreover, it is generally agreed that the new slip and fall

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statute was enacted by the State Legislature to make it more difficult for plaintiffs to pursue slip
and fall claims against retail stores.
This Court was also required to conduct an extensive Daubert hearing pursuant to Florida
Statute 90.702 (2013), which resulted in the Court limiting the testimony of the Defendant's
expert radiologist, Michael Raskin, M.D. There were also other complex and novel issues
dealing with the preservation of electronic evidence in the form of digital video, and whether or
not minor children could be addec.l to the verdict form as nonpart:ies.

4. Whether the person making the offer had unreasonably refused to furnish information
necessary to evaluate the reasonableness of such offer.
Prior to serving her first proposal for settlement on February 21, 2014, Plaintiff had fully
responded to Defendant's first set of interrogatories and requests for production on February 12,
2014 and February 14, 2014. Additionally, the Defendant was in possession of the video
depicting the subject incident on the day it happened which was also available for its review.

5. Whether the suit was in the nature of a test case presenting questions of far-reaching
imnortance affecting nonparties.
This factor is addressed at section 3.

6. The amount of the additional delay cost and expense that the person making the offer
reasonably would be expected to incur if the litigation should be prolonged.
The Court finds that this factor is supported by the Plaintiff's am davit that the
Defendant's refusal to settle contributed to the loss of her business and made it more difficult to
keep up with her mortgage.

"All other relevant criteria" pursuant to Florida Statutes 768.79(7)(b)

The reasonableness of the hourly rate is further supported by the fact that as far back as
ten years ago, appellate Courts in Florida have affirmed awards of hourly rates between $400 $450 to attorneys where there is contentious litigation and/or complex issues are involved. See
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Lobaton, 772 So.2d at 623; Homer & Bonner, P.A. v. 1'1iami-Dade County, 884 So. 2d 425, 427

(Fla. 3d DCA 2004 ). liere the hourly rate sought for the majority of the work performed by
Plaintiff's counsel is $350.00 or less, with the higher rate of $600.00 requested only for senior
lead trial counsel Christopher Wadsworth.
The rates claimed by the Plaintiff's counsel are further suppotied by the Florida Supreme
Court'.s holding in First Baptist Church ofCape Coral, Florida, Inc. v. Compass ... , 115 So.3d
978 (2013 ), where the Florida Supreme Court upheld a fee award where the contract between the
prevailing party and its counsel indicated that if anyone other than the client was required to pay
counsel's attorneys' fees the rate would be substantially higher. Here, Plaintiffs retainer
agreement contains the same alternative fee recovery clause approved by the Florida Supreme
Court in First Baptist.
The Court further notes the extremely aggressive litigation strategy taken by the
Defendant in this case which resulted in numerous hearings before the Court on routine
discovery matters, several motions to strike, and dozens of pretrial motions. For example, on
September 23, 2014 the Defendant noticed for hearing 15 separate pretrial motions and an
additional 11 pretrial motions on October 27, 2014. This was in addition to the dozens of
additional motions filed during the pendency of this case and through trial. This strategy was
further evidenced by the fact that the Defendant brought four attorneys to trial and managed to
bill over 1,017 hours of attorney time from February 21, 2014 through January 15, 2015.
The Defendant's conduct here is similar to the conduct of the defendant in State Farm
Fire & Cas. Co. v. Palma, 524 So. 2d 1035, 1036 (Fla. 4th DCA 1988) approved, 555 So. 2d 836
(Fla. 1990). There, the defendant chose to take the plaintiff "to the mat" and make an example

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out of his case. In affirming the substantial fee award the Fourth District Court of Appeal held
that:
The bonower's counsel did not inflate this small case into a large one~ its
protraction resulted from the stalwart defense. And although defendants are not
required to yield an inch or to pay a dime not due, they may by militant resistance
increase the exertions required of their opponents and thus, if unsuccessful, be
required to bear that cost. .. However, the parties elected to go toe-to-toe over the
issue and they brought to bear all of their skill and resources to try to win the day
as evidenced by the number of medical experts and the time of trial. .. the stakes
were high and the issue became complex, justifying the legal effo1t.

Likewise, Dollar General and its counsel chose to go '"toe-to-toe" with Plaintiff and her
counsel but lost. They cannot now complain that their aggressive litigation strategy resulted in
Plaintiff having to expend 695 hours to respond to the 1017 hours of attorney time Defendant
chose to expend defending a "slip and fall" case.
Expert testimony:
The Court has also heard testimony from the paiiies' fee experts and finds that the time
spent and hourly rate claimed by the Plaintiff's counsel is properly supported by the expert
testimony of Thomas Buser, Esq., who has practiced as a trial attorney on behalf of plaintiffs in
Broward County, Florida for over thirty years and who :is eminently familiar with the rates
charged in the community by lawyers of reasonably comparable skill, experience and reputation
for similar services.

Mr. Buser testified that reviewing the case and testifying was a 4 hour

time expenditure that took time away from his busy practice and that he was expecting to be
paid. His hourly rate was also $600 per hour.
Sanctions pursuant to Florida Statutes 57.105:
The Court makes the following additional findings relating to its order sanctioning the
Defendant and its counsel pursuant to Florida Statutes 57 .105:

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On December 1, 2014, this Court also entered an order sanctioning Defendant

Dolgencorp, LLC and its attorneys pursuant to Florida Statutes 57.105(1) which states:
(1) Upon the court's initiative or motion of any party, the court shall award a reasonable
attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal
amounts by the losing party and the losing party's attorney on any claim or defense at any
time during a civil proceeding or action in which the court finds that the losing party or
the losing party's attorney knew or should have known that a claim or defense when
initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
Even where the underlying defense or claim is meritorious, a trial court may sanction a party
where they have filed a frivolous motion during or subsequent to trial. See Freedom Commerce
Ctr. Venture v. Ranson, 823 So. 2d 81 7, 821 (Fla. 1st DCA 2002); JPMorgan Chase Bank, NA.
v. Hernandez, 99 So. 3d 508, 513 (Fla. 3d DCA 2011 ).

Here the Court sanctioned the Defendant and its counsel on its own initiative for the
following conduct reflected in writing and made part of the 12/1/2014 order (Exhibit B hereto).
a. violating the Court's pretrial order governing the timely filing of motions in
limine and the proffer of evidence prior to trial;
b. moving for a mistrial and filing various post trial motions alleging without any
basis in law or fact that the Court had entered an order in limine relating to
portions of the store video depicting events subsequent to the Plaintiffs fall, and
that Plaintiffs had violated this nonexistent order and should be sanctioned.
c. Repeatedly misquoting the Court as to its pretrial rulings. 1
As the sanction pursuant to 57.105 was entered pursuant to the Court's own initiative the
21 day safe harbor period is inapplicable. See Morton v. Heathcock, 913 So. 2d 662 (Fla. 3d
DCA 2005) (twenty-one day notice requirement imposed by statutory provision establishing
1

See December 1, 2014 Hearing Transcript at 71 : 13 - 94 :25.

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attorney fees for frivolous claims does not apply to fee awards imposed on the trial. court's own
initiative as express! y authorized under the statute Fla. Stat. 57.10 5( 1, 4)).
Furthermore, the trial court is free to measure the award of 57 .105 attorney's fees from
the time the Defendant and its counsel knew or should have known that the claim had no basis in
fact or law. Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615, 620 (Fla. 4th DCA 2006).
Therefore, the trial Court awards 57 .105 attorneys' fees by applying a

1~5

multiplier to the total

attorney fee award as discussed in the next section from the time of the proposal for settlement to
the time of the verdict, although the Court finds entitlement to the time of the February 26, 2015,
hearing because the defense continued to make the frivolous argument to the end, plaintiff
presented no evidence of how much time he expended to that date. The sanction is imposed to
have a meaningful sanction for Defense counsel's violations of the Court's pretrial order,
violation of the Court's pretrial rulings, and improper motion for mistrial2 in light of the fact that
Plaintiff is already entitled to their fees per the proposal for settlement.
Lodestar Factors

The Court specifically considered the evidence of the following factors in determining
the reasonable hourly fee and the reasonable number of hours spent by Plaintiffs' counsel
litigating this case:
A.

The time and labor required, the novelty and difficulty of the question

.involved and the skill requisite to perform the legal service properly.
B.

The likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment by the lawyer.

C.
2

The fee customarily charged in the locality for similar legal services.

Tr. Tran. Vol. 3 at 319:24- 322: 14; 335: 19 - 344:23

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D.

The amount involved and the results obtained.

E.

The time limitations imposed by the client or by the circumstances.

F.

The nature and length of the professional relationship with the client.

G.

The experience, reputation, and ability of the lawyer or lawyers performing

the services.
H.

Whether the fee is fixed or contingent.

14.

The Court has also considered the fee agreements entered into between the

Plaintiffs and Wadsworth, Huott, and determined it is contingent, providing the payment
of a fee upon recovery to be the higher of 40% of the recovery or an amount at $600 per
hour to be awarded by the Court. Consequently, the Court may award a reasonable fee
exceeding the fee which would be recoverable under the percentage alternative of the
agreement. Kaufman v. MacDonald, 557 So.2d 572 (Fla. 1990).
15.

Although not requested by Plaintiff, the Court heard evidence of whether it

should award a contingency risk multiplier as a F .S. 57.l 05 sanction and considered:
A.

Whether the relevant market requires a contingency fee multiplier to

obtain competent counsel, and determined the market so required based on the difficulty
of taking a slip and fall case with questions of notice to conclusion. Further, early on in
the case, after at the very beginning giving the defendant notice to preserve store video
before the incident, Plaintiff learned that Defendant had erased views from other cameras
that would have been relevant to notice. It would have been easy to drop the case or
settle for peanuts.

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B.

Whether the Plaintiffs attorney was able to mitigate the risk of non-

payment in any way, and the Court determined there was no meaningful mitigation of the
risk of nonpayment at the time the contract was entered into because this was a pure
contingency fee contract, no retainer, no hourly fee, no high-low agreement, no deposit
for cost etc.
C.

Whether any of the factors set forth in Florida Patient's Compensation

Fund v. Rowe, 472 So.2d, 1145 (Fla. 1985) are applicable; the results obtained, the
difficulty of the case, the experience of counsel, the time limitations created by the
circumstances of this case because the defense chose to go to the mat in overreaching
over litigating, billing over 1,000 hours on a slip and fall and fighting or filing 55 pretrial
motions most of which required hearings, and also, the type of Plaintiffs' fee agreement.
Further, Plaintiff counsel testified as to how busy he was and how he would have been
able to bill defense files at similar rates to the rate sought herein but for the time he
allocated to this case. These factors were further discussed on pages 4-8 herein.
D.

The likelihood of success at the outset which the Court finds to have

been that success was unlikely at the outset based on the notice and liability issues.
CONCLUSION
Pursuant to Florida 768. 79 and Florida Rule of Civil Procedure 1.442, and pursuant to the
Proposal for Settlement served by the Plaintiff MICHELE BARRY on the Defendant
DOLGENCORP, LLC, the_ Court awards Plaintiff MICHELE BARRY and her attorneys
WADSWORTH, HUOTT LLLP, 14 N.E. 1st Avenue 10th Floor, MIAMI, FL 33132
("WADSWORTH HUOTT"), and finds a reasonable number of hours spent by Plaintiffs'

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counsel to be 650 hours of attorney time, reducing some of the travel time, finding reasonable
and basically uncontested by the defense 250 hours for Wadsworth and 400 hours for the
associates.
Pursuant to Florida Statutes 768.79 the Court awards MICHELE BARRY and her
attorneys WADSWORTH HUOTT 650 total hours of attorney time at an hourly rate of
$

550.00

for Christopher Wadsworth,

350.00

for Raymond Dieppa,

350.00

for Giselle Jorge,

350.00

for Jamie Dixon,

350.00

for Isha Kocchar,

Pursuant to Florida Statutes 768.79 and 57.105 DOLGENCORP, LLC shall pay the sum of:
$ 277,500.00 in attorneys' fees, (650 hours, 250 Wadsworth plus 400 associates, the Court

removed part of the travel time because the defense should not pay for all travel
time for WPB counsel when local counsel is available).
$ 138,750.00 as a FS 57.105(1) sanction, the court applied a 1.5 multiplier to the above attorney

fee, of which Defendant, DOLGENCORP, LLC and defense counsel

HIGHTOWER, STRATTON, WILHELM, will each be liable for 50%,
and shall pay equal amounts totaling $69,375.00 each.
$

7,309.00 in litigation costs

2,400.00 in expert witness fees to Plaintiffs fee expert Thomas Buser Esq.( four hours at a

rate of$ 600 per hour).

Accordingly, it 1s hereby ORDERED ADJUDGED that the Plaintiff, MICHELE
BARRY, 220 N.W. 72 Avenue Hollywood, FL 33024 recover from the Defendant,

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DOLGENCORP, LLC, 100 MISSION RIDGE, GOODLETTSVILLE, TN 37072, the sum of

$356,584.00 and the sum of$ 69,375.00 from HIGHTOWER & PARTNERS, P.A.; 4770

BISCAYNE BLVD. SUITE 1200, MIAMI, FL 33137 ("HIGHTOWER").

Pursuant to Florida Rule of Civil Procedure 1.560, it is further ordered and adjudged that
the judgment debtor(s) shall complete under oath Florida Rule of Civil Procedure Form 1.977
(Fact Information Sheet), including all required attachments, and serve it on the judgment
creditor's attorney, or the judgment creditor if the judgment creditor is not represented by an
attorney, within 45 days from the date of this final judgment, unless the final judgment is
satisfied or post-judgment discovery is stayed. Jurisdiction of this case is retained to enter further
orders that are proper to compel the judgment debtor(s) to complete form 1.977, including all
required attachments, and serve it on the judgment creditor's attorney, or the judgment creditor if
the judgment creditor is not represented by an attorney.
The foregoing amounts to bear interest at a rate of 4.75% per arnium3 for which let
execution issue forthwith.
DONE AND ORDERED in Broward County, Florida this 2nd day of March 2015.

Copies furnished to:

Christopher W. Wadsworth, Esq.(cw(@,wadsworth-law.com)
Raymond R. Dieppa, Esq. (rrd@wadsworth-law.com)
Dale Hightower, Esq. (dale@hightowerlaw.net)
Scott Kantor, Esq. (wpbservice@hightowerlaw.net)

Running from December 1, 2014, the date the Court found entitlement to fees.
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