Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Nos. 1D19-882 1D19-1309 _____________________________ PHILIP MORRIS USA, INC., Appellant/Cross-Appellee, v. MARY BROWN, as Personal Representative of the Estate of Rayfield Brown, Appellee/Cross-Appellant. _____________________________ On appeal from the Circuit Court for Duval County. Russell Healey, Judge. March 11, 2021 PER CURIAM. A wrongful death tobacco case was filed in 2010 by the estate of Rayfield Brown against Phillip Morris USA, Inc., that—after five trials—eventually led to a $6.4 million dollar judgment for compensatory damages on May 5, 2015. Brown had filed two proposals for settlement, one served in July 2010 that was deemed invalid and one served in November 2010 that was deemed valid, the latter seeking $145,000 to settle the case. In August 2015, the trial court ruled that Brown was entitled to fees and costs incurred from the date of the latter proposal through the judgment entered on the jury’s verdict in May 2015. After extensive discovery and a two-day evidentiary hearing, the trial court entered an order, culminating in an award of $7,245,970.00 in attorneys’ fees on January 15, 2019. In a supplemental judgment, the trial court also award $1,310,353.37 in prejudgment interest, calculated from the date of the damages award. The parties raise a number of issues on appeal and cross- appeal. We affirm as to all issues except the issue of whether pre- judgment interest was warranted. Underlying the award of pre-judgment interest in this case is the question of whether the trial court properly used the current rates of the attorneys representing Brown’s estate in calculating the fee award. The case was filed in 2010 and the litigation spanned the better part of a decade during which the billing rates for attorneys increased. Due to delays in the case, the trial court decide to use current rates based on the Fourth District’s decision in Florida Department of Agriculture & Consumer Services v. Bogorff, 132 So. 3d 249, 257 (Fla. 4th DCA 2013), which upheld the use of current rates “rather than the historic hourly rates over the decade of this litigation.” Its reasoning, based on the decisions in Perdue v. Kenny A., 559 U.S. 542 (2010), and Gray v. Bostic, 613 F.3d 1035 (11th Cir. 2010), supported the use of current rates when an exceptional, unanticipated delay in the resolution of a case is shown. Bogorff, 132 So. 3d at 257. As a remedy, the “delay could be compensated either by using current rates for the entire fee calculation, or by using the rates in place when the work was performed and adjusting it to present value.” Id. Like the trial court in Bogorff, the trial court in this case took the “current rate” approach rather than a present value approach. Applying Bogorff, which found no abuse of discretion in the use of current rates in that case, we likewise find no abuse of discretion under the unusual circumstances in this case. The related issue, on which we reverse, is whether the award of prejudgment interest was unwarranted given the use of the current rate approach. The current rate approach, which is an alternative to a present value approach, tacitly includes an adjustment for the time value of money. Rather than engage in a 2 potentially more complex present value approach, the current rate approach provides an approximation of what the more analytically-intense approach would produce. Bogorff, 132 So. 3d at 257. Allowing pre-judgment interest on top of an award that is based on the current rate approach thereby overcompensates the fee award by compounding the interest component of an award. In other words, the current rate approach—which will generally result in a higher fee award—already includes the time value of money that an award of prejudgment interest would partially replicate or possibly duplicate. For this reason, we reverse with instructions to vacate the award of pre-judgment interest. MAKAR, OSTERHAUS, and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Kenneth Reilly, W. Edwards Muniz, and Hassia Diolombi of Shook Hardy & Bacon LLP, Miami; Terri L. Parker and Adriana M. Paris of Shook Hardy & Bacon LLP, Tampa; Geoffrey J. Michael and David M. Menichetti of Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Appellant/Cross-Appellee. John S. Mills of Bishop & Mills, PLLC, Jacksonville; John S. Kalil, Jacksonville; Courtney Brewer and Jonathan Anthony Martin of Bishop & Mills, PLLC, Tallahassee, for Appellee/Cross-Appellant. 3