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IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO. 06-5331 CA 22
“N
CONSTRUCT GROUP CORP.,
Plaintiff/ Appellee,
Vv.
M. VILA & ASSOCIATES, INC., and
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendants/Appellants,
Vv
MIAMI-DADE COUNTY,
Third Party Defendant/Appellee.
NOTICE OF APPEAL
NOTICE IS HEREBY GIVEN that M. Vila & Associates, Inc. and Fidelity
Deposit Company of Maryland, Defendants/Appellants, appeal to the Third District
Court of Appeal the attached order of this Court rendered on April 13, 2009. The
nature of said order is a Final Judgment Awarding Attorneys’ Fees originally filed
March 20, 2009 and rendered upon filing of the Order Denying Defendants’ Motion
for Rehearing, a copy of which is attached.
(
'WASSON & ASSOCIATES, CHARTERED
Courthouse Plaza * Suite 600 » 28 West Flagler Street * Miami, FL 33130 » Telephone (305) 666-5053
toy@wassonandassociates.com
Bk 26841 Pg 3137 CFN 20090300767 04/24/2009 16:11:36 Pg 1 of 9 Mia-Dade Cty, FL
Roy D. WASSON W. SAM HOLLAND
WASSON & ASSOCIATES, CHARTERED FERRARO & ASSOCIATES, P.A.
Courthouse Plaza—Suite 600 4000 Ponce de Leon Boulevard
28 West Flagler Street Suite 700
Miami, FL 33130 Miami, FL 33146
(305) 666-5053 Telephone (305) 375-0111 Telephone
(305) 666-9511 Facsimile (305) 379-6222 Facsimile
roy@wassonandassociates.com
JORGE DEL VALLE
DEL VALLE & LA CIVITA
4000 Ponce de Leon Boulevard
Suite 470
Miami, FL 33146
(305) 860-8108 Telephone
(305) 379-6222 Facsimile
Counselfgr Defendants/Appellants
By
RO WASSON
Florida Bar No. 332070
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served
by U.S. Mail upon Joseph W. Lawrence, II and Robert L. Frye, Vezina, Lawrence &
Piscitelli, P.A., Counsel for Plaintiffs, The Museum Building, 300 SW First Avenue,
Suite 150, Fort Lauderdale, FL 33301; W. Sam Holland, The Ferraro Law Firm,
Counsel for Defendants M. Vila & Associates and Fidelity, 4000 Ponce de Leon
Boulevard, Suite 7000, Miami, FL 33146; Jorge J. Del Valle, Del Valle & La Civita,
WASSON & ASSOCIATES, CHARTERED
Courthouse Plaza * Suite 600 + 28 West Flagler Street * Miami, FL 33130 » Telephone (305) 666-5053
roy@wassonandassociates.com
Bk 26841 Pg 3138 CFN 20090300767 04/24/2009 16:11:36 Pg 2 of 9 Mia-Dade Cty, FL
Counsel for Defendants, 4000 Ponce de Leon Boulevard, Suite 470, Coral Gables, FL
33146; and Jason Bloch, Assistant Miami-Dade County Attorney, 111 NW 1 Street,
Miami, FL 33129; on this the 20th day of April, 2009.
By:
ROY D. WASSON
Florida Bar No. 332070
WASSON & ASSOCIATES, CHARTERED
Courthouse Plaza * Suite 600 * 28 West Flagler Street + Miami, FL 33130 * Telephone (305) 666-5053
roy@wassonandassociates.com
Bk 26841 Pg 3139 CFN 20090300767 04/24/2009 16:11:36 Pg 3 of 9 Mia-Dade Cty, FL
IT IN
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCU
AND FOR MIAMI-DADE COUNTY, FLORIDA
CONSTRUCT GROUP CORP.
Plaintiff,
Case No.: 06-5331 CA 22
Vv.
M. VILA & ASSOCIATES, INC. and
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND
Defendants.
/
eS
Vv.
M. VILA & ASSOCIATES, INC.,
Third Party Plaintiff,
Vv.
MIAMI-DADE COUNTY, FLORIDA, a
political subdivision of the State of Florida,
acting by and through its BOARD OF
COUNTY COMMISSIONERS,
Third Party Defendant.
/
FINAL JUDGMENT AWARDING ATTORNEYS’ FEES
dated
Pursuant to the verdict rendered in this action on August 2, 2008, the Court’s Order
ary hearing
November 10, 2008 regarding entitlement to award of attorneys fees, and the evidenti
held on January 14, 2009 and January 15, 2009, the Court having heard argument of counsel,
of Law, briefs of the
having reviewed the Court file, having considered the Motion, Memoranda
finds:
parties, testimony and hearing exhibits, and being fully advised in the premises, the Court
1 Plaintiff is entitled to an award of reasonable attorneys’ fees for the services of its
attorneys in this case pursuant to the Paragraphs 5 and 22 of the Subcontract and §§57.105(7),
255.05, 627.428 and 627.756, Florida Statutes.
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2 Over the course of their representation of Plaintiff, Plaintiff's attorneys
reasonably expended:
Mr. Lawrence: 534.7 hours at $325.00 and $425.00 per hour.
Mr. Frye: 1068.7 hours at $225.00 and $295.00 per hour.
Mr, Piscitelli: 49.4 hours at $425.00 per hour.
Mr. Johnson: 77.1 hours at $225.00 to $250.00 per hour.
Other Attorneys: 6.1 hours at to $295.00 per hour.
Paralegals: 167.3 hours at $85.00 per hour.
TOTAL: 1903.3 hours.
The above number of hours and hourly rates are reasonable.| The above findings of fact
were made after primary consideration of all the criteria set forth in Florida Patient's
Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) (“Rowe”); Standard Guar. Ins. Co. v.
Quanstrom, 555 So. 2d 828 (Fla, 1990) (“Quanstrom”) and evidence submitted to the Court.
3 A contingency fee multiplier is necessary as set forth herein, considering the
three-part test in Quanstrom: (1) The relevant market requires a contingency fee multiplier to
obtain competent counsel;? (2) Plaintiff's counsel was not able to mitigate the tisk of
nonpayment in any way;? and (3) All of the factors set forth in Rowe support the conclusion that
a contingency fee multiplier is necessary and should be applied in this case. Competent
" A well-respected and experienced fee expert for Plaintiff (Gerald Richman) together with the concurrence of the
Defendants concluded that Plaintiff's counsel's hours and rates were reasonable. The assigned hourly rates were the
customary hourly charges of the law firm, and are reasonable for Miami-Dade County, and the hours were
reasonably necessary.
its
2 In this case the Defendant sought a huge Counterclaim against Plaintiff, Plaintiff owed a substantial sum to
shareholders, Plaintiff had a relatively small contract balance due from Defendant M. Vila and Associates, Inc. (and
against the surety, Fidelity and Deposit Company of Maryland), Plaintiff had limited sources of income from other
projects and loans from its shareholders, and Plaintiff was financially in peril. Presented with such a potential net
deficit, and Plaintiff's swom-to financial inability to pay an attorney on an hourly basis, and the potential for a low
recovery due to the claim amount, the additional potential reward of a contingency fee multiplier was necessary to
obtain competent counsel within the relevant market of Miami-Dade County area. It was difficult (in fact, highly
unlikely) that any competent counsel would have taken the case on solely a contingency fee without the potential of
a multiplier (the Court having accepted and relied upon the largely unchallenged competent testimony of Plaintiff's
attomey fee expert and Plaintiff's counsel, each of whom have more than 30 years of legal and litigation
experience).
3 With Defendants’ staunch opposition to Plaintiff's claims before, during and after litigation, and without any
opportunities for a reasonable settlement, Plaintiff's counsel was without any means to mitigate its risk of
nonpayment. The agreement was a straight contingency fee agreement. While Plaintiff's counsel originally
estimated it would take in excess of $200,000 of standard hourly rates to represent Plaintiff in the litigation (barring
an appeal), pursuant to its fee agreement with Plaintiff, the only way Plaintiff's counsel would recover any
compensation for its services was if Plaintiff prevailed on its claim and defeated the huge Counterclaim. Further,
even if Plaintiff prevailed (it was a difficult case, and under the constraints of a restrictive government contract
incorporated by reference into the Subcontract, with many conditions precedent to successfully litigate the matter),
Plaintiff was not guaranteed a recovery.
2
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substantial evidence was accepted by this Court at the evidentiary
hearing, specifically including
the testimony of Jorge Pulles of Construct Group Corp., Joseph
W. Lawrence, II of Vezina,
Lawrence & Piscitelli, P.A., and the expert testimony of Gerald
Richman, upon which the Court
relies to find and determine that Construct Group Corp. is entitle
d to a multiplier upon the
lodestar. The Court specifically finds that the evidence during the
evidentiary hearing
demonstrated that Construct Group Corp. did not have the financi
al resources to obtain counsel
on an hourly basis, much less pay the costs at the time of engagement,
such that Construct Group
would have had difficulty obtaining counsel. The Court finds that
it was highly unlikely that any
competent law firm would have taken Construct Group Corp.’
s case and claim on acontingency
fee basis. The Court also finds that at the outset of the case the
likelihood of Construct Group
Corp.’s success in its claim against the Defendants was
even (50/50).* In the exercise of the
Court’s discretion, and in accordance with the criteri
a set forth in Rowe and Quanstrom, and in
light of the fact that at the beginning of the case the likelihood of success
for the Plaintiff was
even (50/50), the Court finds that a contingency fee multiplier
of 2.0 isappropriate.>
4 The Court makes the following findings with regard to the factors
listed in
Rowe:
a. Time, labor and_skill_ required: Litigating against Defendants on a
particularly complex set of scientific, geotechnical, geophysical,
engineering and contracting issues was an extremely difficul
t matter to
pursue which required a great deal of time, skill and expertise,
Case precluded other employment: While Plaintiff's counsel contin
ued to
represent other clients during counsel’s representation of Plainti
ff,
counsel’s ability to represent other clients was impacted by counsel’s
tequired devotion to Plaintiff's claim against Defendants,
* When Plaintiff's counsel agreed to represent Plaintiff, Plaintiff had
no direct proof that there was a breach of
subcontract, changed condition, no di irect proof of misrepr
esentation, and Defendants and Miami-Dade County had
asserted Plaintiff performed defective w ork and failed to complet
e Plaintiff's work on time. Defendants never
offered to pay Plaintiff any money duri ing the course of the
Project after June 2004 through the course of trial.
Further, Defendants argued that Contract and Subcontract
provisions entirely barred Plaintiff's claim.
* Without applying a multiplier, Plaintiff's counsel’ 3 recover
y would be 35% of the verdict in Plaintiff's favor
($743,620.00) for a total fee of $260,267.00, Such
& recovery would be well under Plaintiff's counsel’s
hourly fee had counsel been paid on an hourly basis throug normal
hout its representation of Plaintiff, which counsel was
not. Without the application of a multiplier, Plaintiff's c ‘ounsel
would not be appropriately compensated for the
contingency risk that counsel assumed when it agreed
to ré ‘present Plaintiff.
3
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Comparable fees charged in the locality: The rates normally charged
by
Plaintiff's counsel were comparable to the rates charged in the locality for
services of a similar nature.
Significance/amount involved and results obtained: The amounts involve
d
were significant, as evidenced by the damages Plaintiff suffered and the
size of the Counterclaim, as were the results obtained in light of the
complex nature of the case and the formidable opponents Plaintiff faced.
Time constraints: With the Plaintiff's dire straits and Plaintiff's counsel’s
substantial investment in the case, Plaintiff and Plaintiff's counsel
were
forced to consider the litigation very time sensitive and were able
to bring
the matter to a successful conclusion within a relatively short period
of
time.
Nature and length of relationship with client: Despite Plaintiff's counsel
not having any prior professional telationship with Plaintiff, Plainti
ffs
counsel devoted themselves to Plaintiff's interests as if Plaintif
f was a
long-standing, treasured client.
Experience, reputation, diligence and ability of lawyers and skill experti
se,
or efficiency of effort provided: Messrs. Lawrence and Frye, as
well as
Vezina, Lawrence & Piscitelli, P.A., whose practice is almost
100%
construction litigation, specializing in sitework, utilities and
roadway and
bridge construction projects, made them especially well suited to
handle
such a difficult case, with such determination, in such a
short period of
time, with such a favorable result for the client.
Whether fee was fixed or contingent: Despite the inherent risks in doing
so, Plaintiff's counsel represented Plaintiff on a contingent fee
basis.
5 Multiplying the reasonable number of hours (1903.3) by the
applicable reasonable
rates listed in Paragraph 3 above results in a lodestar of $579,796.25.
The reasonableness of the
lodestar (both the number of hours and hourly rates) was not disput
ed by M. Vila & Associates,
Inc. and Fidelity Deposit Company ofMaryland.
6. The Court, however, finds that the lodestar should be adjust
ed by the results
obtained. Based on the evidence adduced during the evidentiary
hearing together with the record
before the Court, including the post-hearing briefs of the
parties regarding the results obtained,
4
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the Court determines that the rate of success for Construct Group Corp. was 94%. Applying the
94% to the lodestar amount of $579,796.25 yields an adjusted lodestar of $545,008.48.
7 Multiplying the adjusted lodestar amount of $545,008.48 by the 2.0 multiplier,
Plaintiff is entitled to an award of attorneys’ fees in the amount of $1,090,016.96.
8 The Court does not reach the issue of the costs to be awarded Construct Group
Corp., and the Court reserves jurisdiction to determine the amount of costs to be awarded to
Construct Group Corp. and against M. Vila & Associates, Inc. and Fidelity and Deposit
Company of Maryland.
Based on the foregoing findings, it is ORDERED AND ADJUDGED THAT Construct
Group Corp. (“Construct Group”), 12101 NW 98" Avenue, Suite 8, Hialeah Gardens, Florida,
33018, shall recover from M. Vila & Associates, Inc., 12097 N.W. 98” Avenue, Hialeah
Gardens, Florida 33018, and Fidelity and Deposit Company of Maryland, 1400 American Lane,
20" Floor, Schaumburg, [linois 60196, attomeys’ fees in the amount of $1,090,016.96.
IT IS ORDERED AND ADJUDGED
that Construct Group Corp. is entitled to a
judgment (in addition to the Second Amended Final Judgment dated November 20, 2008) in the
amount of $1,090,016.96 for attomeys’ fees, which total sum shall bear interest at the rate of
eight percent (8%) per year after the date of this Final Judgment, for which let execution issue.
The Court reserves jurisdiction to determine the amount of costs to be awarded to
Construct Group Corp. and against M. Vila & Associates, Inc. and Fidelity and Deposit
Company of Maryland.
oe,
DONE and ORDERED in Chambers a iiami-Dade County, Florida, this! day of
, 2009. David C. Miller i
Circuit Court Judge
4s
¢ op
Dagjd C. Miller, Circuit Co Judge
Copies fumished to:
Joseph W. Lawrence, II ontorme
Jorge Del Valle
Sam Holland Co
Roy Wasson
James Hauser
Jason Bloch
Bk 26841 Pg 3144 CFN 20090300767 04/24/2009 16:11:36 Pg 8 of 9 Mia-Dade Cty, FL
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN
AND FOR MIAMI-DADE COUNTY, FLORIDA
CONSTRUCT GROUP CORP.,
Plaintiff,
Case No.: 06-5331 CA 22
v.
M. VILA & ASSOCIATES, INC. and
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendants.
SS
v.
M. VILA & ASSOCIATES, INC.,
Third Party Plaintiff,
Vv.
MIAMI-DADE COUNTY, FLORIDA, a
political subdivision of the State of Florida,
acting by and through its BOARD OF
COUNTY COMMISSIONERS,
Third Party Defendant.
ee
ORDER DENYING DEFENDANTS’ MOTION FOR REHEARING
PURSUANT TO RULE 1.530(a), FLA. R. CIV. P., AND TO CORRECT
MISSTATEMETNS OF ALLEGED FACTUAL FINDINGS RECITED IN THE
‘01 °S FINA: \T AWARDING A’ y: OF RCH 19,
This matter came before the Court on Defendants’ Motion for Rehearing Pursuant to Rule 1.530(a),
Fla. R. Civ. P., and To Correct Misstatements of Alleged Factual Findings Recited in the Court’s Final
Judgment Awarding Attorneys Fees of March 19, 2009, and the Court being advised in the premises, it is
hereby ORDERED and ADJUDGED that the Motion is DENIED.
DONE AND ORDERED in Chambers at Miami-Dade County, Florida, this B day of April, 2009.
Conformed Gry
Copies furnished:
GRCUTT
COBRTIUBGE
Davi © Water
Mille:
Mr. Joseph W. Lawrence, II/Mr. Robert L. Frye; Mr. Jorge
Mr. Roy Wasson: Mr. James Hauser
ae EMO A putea: Mr. Jason Bloch;
Bk 26841 Pg 3145 CFN 20090300767 04/24/2009 16:11:36 Pg 9 of 9 Mia-Dade Cty, FL
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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. 06-5331 CA 22 “N CONSTRUCT GROUP CORP., Plaintiff/ Appellee, Vv. M. VILA & ASSOCIATES, INC., and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendants/Appellants, Vv MIAMI-DADE COUNTY, Third Party Defendant/Appellee. NOTICE OF APPEAL NOTICE IS HEREBY GIVEN that M. Vila & Associates, Inc. and Fidelity Deposit Company of Maryland, Defendants/Appellants, appeal to the Third District Court of Appeal the attached order of this Court rendered on April 13, 2009. The nature of said order is a Final Judgment Awarding Attorneys’ Fees originally filed March 20, 2009 and rendered upon filing of the Order Denying Defendants’ Motion for Rehearing, a copy of which is attached. ( 'WASSON & ASSOCIATES, CHARTERED Courthouse Plaza * Suite 600 » 28 West Flagler Street * Miami, FL 33130 » Telephone (305) 666-5053 toy@wassonandassociates.com Bk 26841 Pg 3137 CFN 20090300767 04/24/2009 16:11:36 Pg 1 of 9 Mia-Dade Cty, FL Roy D. WASSON W. SAM HOLLAND WASSON & ASSOCIATES, CHARTERED FERRARO & ASSOCIATES, P.A. Courthouse Plaza—Suite 600 4000 Ponce de Leon Boulevard 28 West Flagler Street Suite 700 Miami, FL 33130 Miami, FL 33146 (305) 666-5053 Telephone (305) 375-0111 Telephone (305) 666-9511 Facsimile (305) 379-6222 Facsimile roy@wassonandassociates.com JORGE DEL VALLE DEL VALLE & LA CIVITA 4000 Ponce de Leon Boulevard Suite 470 Miami, FL 33146 (305) 860-8108 Telephone (305) 379-6222 Facsimile Counselfgr Defendants/Appellants By RO WASSON Florida Bar No. 332070 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by U.S. Mail upon Joseph W. Lawrence, II and Robert L. Frye, Vezina, Lawrence & Piscitelli, P.A., Counsel for Plaintiffs, The Museum Building, 300 SW First Avenue, Suite 150, Fort Lauderdale, FL 33301; W. Sam Holland, The Ferraro Law Firm, Counsel for Defendants M. Vila & Associates and Fidelity, 4000 Ponce de Leon Boulevard, Suite 7000, Miami, FL 33146; Jorge J. Del Valle, Del Valle & La Civita, WASSON & ASSOCIATES, CHARTERED Courthouse Plaza * Suite 600 + 28 West Flagler Street * Miami, FL 33130 » Telephone (305) 666-5053 roy@wassonandassociates.com Bk 26841 Pg 3138 CFN 20090300767 04/24/2009 16:11:36 Pg 2 of 9 Mia-Dade Cty, FL Counsel for Defendants, 4000 Ponce de Leon Boulevard, Suite 470, Coral Gables, FL 33146; and Jason Bloch, Assistant Miami-Dade County Attorney, 111 NW 1 Street, Miami, FL 33129; on this the 20th day of April, 2009. By: ROY D. WASSON Florida Bar No. 332070 WASSON & ASSOCIATES, CHARTERED Courthouse Plaza * Suite 600 * 28 West Flagler Street + Miami, FL 33130 * Telephone (305) 666-5053 roy@wassonandassociates.com Bk 26841 Pg 3139 CFN 20090300767 04/24/2009 16:11:36 Pg 3 of 9 Mia-Dade Cty, FL IT IN IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCU AND FOR MIAMI-DADE COUNTY, FLORIDA CONSTRUCT GROUP CORP. Plaintiff, Case No.: 06-5331 CA 22 Vv. M. VILA & ASSOCIATES, INC. and FIDELITY AND DEPOSIT COMPANY OF MARYLAND Defendants. / eS Vv. M. VILA & ASSOCIATES, INC., Third Party Plaintiff, Vv. MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida, acting by and through its BOARD OF COUNTY COMMISSIONERS, Third Party Defendant. / FINAL JUDGMENT AWARDING ATTORNEYS’ FEES dated Pursuant to the verdict rendered in this action on August 2, 2008, the Court’s Order ary hearing November 10, 2008 regarding entitlement to award of attorneys fees, and the evidenti held on January 14, 2009 and January 15, 2009, the Court having heard argument of counsel, of Law, briefs of the having reviewed the Court file, having considered the Motion, Memoranda finds: parties, testimony and hearing exhibits, and being fully advised in the premises, the Court 1 Plaintiff is entitled to an award of reasonable attorneys’ fees for the services of its attorneys in this case pursuant to the Paragraphs 5 and 22 of the Subcontract and §§57.105(7), 255.05, 627.428 and 627.756, Florida Statutes. Bk 26841 Pg 3140 CFN 20090300767 04/24/2009 16:11:36 Pg 4 of 9 Mia-Dade Cty, FL 2 Over the course of their representation of Plaintiff, Plaintiff's attorneys reasonably expended: Mr. Lawrence: 534.7 hours at $325.00 and $425.00 per hour. Mr. Frye: 1068.7 hours at $225.00 and $295.00 per hour. Mr, Piscitelli: 49.4 hours at $425.00 per hour. Mr. Johnson: 77.1 hours at $225.00 to $250.00 per hour. Other Attorneys: 6.1 hours at to $295.00 per hour. Paralegals: 167.3 hours at $85.00 per hour. TOTAL: 1903.3 hours. The above number of hours and hourly rates are reasonable.| The above findings of fact were made after primary consideration of all the criteria set forth in Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) (“Rowe”); Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla, 1990) (“Quanstrom”) and evidence submitted to the Court. 3 A contingency fee multiplier is necessary as set forth herein, considering the three-part test in Quanstrom: (1) The relevant market requires a contingency fee multiplier to obtain competent counsel;? (2) Plaintiff's counsel was not able to mitigate the tisk of nonpayment in any way;? and (3) All of the factors set forth in Rowe support the conclusion that a contingency fee multiplier is necessary and should be applied in this case. Competent " A well-respected and experienced fee expert for Plaintiff (Gerald Richman) together with the concurrence of the Defendants concluded that Plaintiff's counsel's hours and rates were reasonable. The assigned hourly rates were the customary hourly charges of the law firm, and are reasonable for Miami-Dade County, and the hours were reasonably necessary. its 2 In this case the Defendant sought a huge Counterclaim against Plaintiff, Plaintiff owed a substantial sum to shareholders, Plaintiff had a relatively small contract balance due from Defendant M. Vila and Associates, Inc. (and against the surety, Fidelity and Deposit Company of Maryland), Plaintiff had limited sources of income from other projects and loans from its shareholders, and Plaintiff was financially in peril. Presented with such a potential net deficit, and Plaintiff's swom-to financial inability to pay an attorney on an hourly basis, and the potential for a low recovery due to the claim amount, the additional potential reward of a contingency fee multiplier was necessary to obtain competent counsel within the relevant market of Miami-Dade County area. It was difficult (in fact, highly unlikely) that any competent counsel would have taken the case on solely a contingency fee without the potential of a multiplier (the Court having accepted and relied upon the largely unchallenged competent testimony of Plaintiff's attomey fee expert and Plaintiff's counsel, each of whom have more than 30 years of legal and litigation experience). 3 With Defendants’ staunch opposition to Plaintiff's claims before, during and after litigation, and without any opportunities for a reasonable settlement, Plaintiff's counsel was without any means to mitigate its risk of nonpayment. The agreement was a straight contingency fee agreement. While Plaintiff's counsel originally estimated it would take in excess of $200,000 of standard hourly rates to represent Plaintiff in the litigation (barring an appeal), pursuant to its fee agreement with Plaintiff, the only way Plaintiff's counsel would recover any compensation for its services was if Plaintiff prevailed on its claim and defeated the huge Counterclaim. Further, even if Plaintiff prevailed (it was a difficult case, and under the constraints of a restrictive government contract incorporated by reference into the Subcontract, with many conditions precedent to successfully litigate the matter), Plaintiff was not guaranteed a recovery. 2 Bk 26841 Pg 3141 CFN 20090300767 04/24/2009 16:11:36 Pg 5 of 9 Mia-Dade Cty, FL substantial evidence was accepted by this Court at the evidentiary hearing, specifically including the testimony of Jorge Pulles of Construct Group Corp., Joseph W. Lawrence, II of Vezina, Lawrence & Piscitelli, P.A., and the expert testimony of Gerald Richman, upon which the Court relies to find and determine that Construct Group Corp. is entitle d to a multiplier upon the lodestar. The Court specifically finds that the evidence during the evidentiary hearing demonstrated that Construct Group Corp. did not have the financi al resources to obtain counsel on an hourly basis, much less pay the costs at the time of engagement, such that Construct Group would have had difficulty obtaining counsel. The Court finds that it was highly unlikely that any competent law firm would have taken Construct Group Corp.’ s case and claim on acontingency fee basis. The Court also finds that at the outset of the case the likelihood of Construct Group Corp.’s success in its claim against the Defendants was even (50/50).* In the exercise of the Court’s discretion, and in accordance with the criteri a set forth in Rowe and Quanstrom, and in light of the fact that at the beginning of the case the likelihood of success for the Plaintiff was even (50/50), the Court finds that a contingency fee multiplier of 2.0 isappropriate.> 4 The Court makes the following findings with regard to the factors listed in Rowe: a. Time, labor and_skill_ required: Litigating against Defendants on a particularly complex set of scientific, geotechnical, geophysical, engineering and contracting issues was an extremely difficul t matter to pursue which required a great deal of time, skill and expertise, Case precluded other employment: While Plaintiff's counsel contin ued to represent other clients during counsel’s representation of Plainti ff, counsel’s ability to represent other clients was impacted by counsel’s tequired devotion to Plaintiff's claim against Defendants, * When Plaintiff's counsel agreed to represent Plaintiff, Plaintiff had no direct proof that there was a breach of subcontract, changed condition, no di irect proof of misrepr esentation, and Defendants and Miami-Dade County had asserted Plaintiff performed defective w ork and failed to complet e Plaintiff's work on time. Defendants never offered to pay Plaintiff any money duri ing the course of the Project after June 2004 through the course of trial. Further, Defendants argued that Contract and Subcontract provisions entirely barred Plaintiff's claim. * Without applying a multiplier, Plaintiff's counsel’ 3 recover y would be 35% of the verdict in Plaintiff's favor ($743,620.00) for a total fee of $260,267.00, Such & recovery would be well under Plaintiff's counsel’s hourly fee had counsel been paid on an hourly basis throug normal hout its representation of Plaintiff, which counsel was not. Without the application of a multiplier, Plaintiff's c ‘ounsel would not be appropriately compensated for the contingency risk that counsel assumed when it agreed to ré ‘present Plaintiff. 3 Bk 26841 Pg 3142 CFN 20090300767 04/24/2009 16:11:36 Pg 6 of 9 Mia-Dade Cty, FL Comparable fees charged in the locality: The rates normally charged by Plaintiff's counsel were comparable to the rates charged in the locality for services of a similar nature. Significance/amount involved and results obtained: The amounts involve d were significant, as evidenced by the damages Plaintiff suffered and the size of the Counterclaim, as were the results obtained in light of the complex nature of the case and the formidable opponents Plaintiff faced. Time constraints: With the Plaintiff's dire straits and Plaintiff's counsel’s substantial investment in the case, Plaintiff and Plaintiff's counsel were forced to consider the litigation very time sensitive and were able to bring the matter to a successful conclusion within a relatively short period of time. Nature and length of relationship with client: Despite Plaintiff's counsel not having any prior professional telationship with Plaintiff, Plainti ffs counsel devoted themselves to Plaintiff's interests as if Plaintif f was a long-standing, treasured client. Experience, reputation, diligence and ability of lawyers and skill experti se, or efficiency of effort provided: Messrs. Lawrence and Frye, as well as Vezina, Lawrence & Piscitelli, P.A., whose practice is almost 100% construction litigation, specializing in sitework, utilities and roadway and bridge construction projects, made them especially well suited to handle such a difficult case, with such determination, in such a short period of time, with such a favorable result for the client. Whether fee was fixed or contingent: Despite the inherent risks in doing so, Plaintiff's counsel represented Plaintiff on a contingent fee basis. 5 Multiplying the reasonable number of hours (1903.3) by the applicable reasonable rates listed in Paragraph 3 above results in a lodestar of $579,796.25. The reasonableness of the lodestar (both the number of hours and hourly rates) was not disput ed by M. Vila & Associates, Inc. and Fidelity Deposit Company ofMaryland. 6. The Court, however, finds that the lodestar should be adjust ed by the results obtained. Based on the evidence adduced during the evidentiary hearing together with the record before the Court, including the post-hearing briefs of the parties regarding the results obtained, 4 Bk 26841 Pg 3143 CFN 20090300767 04/24/2009 16:11:36 Pg 7 of 9 Mia-Dade Cty, FL the Court determines that the rate of success for Construct Group Corp. was 94%. Applying the 94% to the lodestar amount of $579,796.25 yields an adjusted lodestar of $545,008.48. 7 Multiplying the adjusted lodestar amount of $545,008.48 by the 2.0 multiplier, Plaintiff is entitled to an award of attorneys’ fees in the amount of $1,090,016.96. 8 The Court does not reach the issue of the costs to be awarded Construct Group Corp., and the Court reserves jurisdiction to determine the amount of costs to be awarded to Construct Group Corp. and against M. Vila & Associates, Inc. and Fidelity and Deposit Company of Maryland. Based on the foregoing findings, it is ORDERED AND ADJUDGED THAT Construct Group Corp. (“Construct Group”), 12101 NW 98" Avenue, Suite 8, Hialeah Gardens, Florida, 33018, shall recover from M. Vila & Associates, Inc., 12097 N.W. 98” Avenue, Hialeah Gardens, Florida 33018, and Fidelity and Deposit Company of Maryland, 1400 American Lane, 20" Floor, Schaumburg, [linois 60196, attomeys’ fees in the amount of $1,090,016.96. IT IS ORDERED AND ADJUDGED that Construct Group Corp. is entitled to a judgment (in addition to the Second Amended Final Judgment dated November 20, 2008) in the amount of $1,090,016.96 for attomeys’ fees, which total sum shall bear interest at the rate of eight percent (8%) per year after the date of this Final Judgment, for which let execution issue. The Court reserves jurisdiction to determine the amount of costs to be awarded to Construct Group Corp. and against M. Vila & Associates, Inc. and Fidelity and Deposit Company of Maryland. oe, DONE and ORDERED in Chambers a iiami-Dade County, Florida, this! day of , 2009. David C. Miller i Circuit Court Judge 4s ¢ op Dagjd C. Miller, Circuit Co Judge Copies fumished to: Joseph W. Lawrence, II ontorme Jorge Del Valle Sam Holland Co Roy Wasson James Hauser Jason Bloch Bk 26841 Pg 3144 CFN 20090300767 04/24/2009 16:11:36 Pg 8 of 9 Mia-Dade Cty, FL IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CONSTRUCT GROUP CORP., Plaintiff, Case No.: 06-5331 CA 22 v. M. VILA & ASSOCIATES, INC. and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendants. SS v. M. VILA & ASSOCIATES, INC., Third Party Plaintiff, Vv. MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida, acting by and through its BOARD OF COUNTY COMMISSIONERS, Third Party Defendant. ee ORDER DENYING DEFENDANTS’ MOTION FOR REHEARING PURSUANT TO RULE 1.530(a), FLA. R. CIV. P., AND TO CORRECT MISSTATEMETNS OF ALLEGED FACTUAL FINDINGS RECITED IN THE ‘01 °S FINA: \T AWARDING A’ y: OF RCH 19, This matter came before the Court on Defendants’ Motion for Rehearing Pursuant to Rule 1.530(a), Fla. R. Civ. P., and To Correct Misstatements of Alleged Factual Findings Recited in the Court’s Final Judgment Awarding Attorneys Fees of March 19, 2009, and the Court being advised in the premises, it is hereby ORDERED and ADJUDGED that the Motion is DENIED. DONE AND ORDERED in Chambers at Miami-Dade County, Florida, this B day of April, 2009. Conformed Gry Copies furnished: GRCUTT COBRTIUBGE Davi © Water Mille: Mr. Joseph W. Lawrence, II/Mr. Robert L. Frye; Mr. Jorge Mr. Roy Wasson: Mr. James Hauser ae EMO A putea: Mr. Jason Bloch; Bk 26841 Pg 3145 CFN 20090300767 04/24/2009 16:11:36 Pg 9 of 9 Mia-Dade Cty, FL