24 Fla. L. Weekly Supp. 594a
Online Reference: FLWSUPP 2408FELDInsurance — Personal injury protection — Attorney’s fees — Charging lien — Discharged attorney that formerly represented insured in action for PIP benefits appeals final judgment on equitable distribution of settlement determining that attorney was entitled to 75% of $5,000 amount designated for attorney’s fees and costs in settlement — No merit to argument that attorney has statutory right, under section 627.428, to proceed against insurer for attorney’s fees rather than having fees capped by terms of settlement — Statute is inapplicable to claim for fees pursuant to charging lien — No abuse of discretion in awarding fees and costs from settlement proceeds based on quantum meruit
MARK J. FELDMAN, P.A., Appellant, v. CLARENDON NATIONAL INSURANCE COMPANY, ET AL., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2015-329-AP. L.T. Case No. 2008-7973-CC-05. November 18, 2016. An appeal from a decision by the County Court in and for Miami-Dade County, Florida, Lourdes Simon, Judge. Counsel: Mark J. Feldman, Mark J. Feldman, P.A., for Appellant. Aaron Wong, Luks, Santaniello, Petrillo & Jones, for Appellee.
(Before, LUCK, MILIAN, and MILLAN, JJ.)
(MILIAN, J.) This matter comes before the Court upon Appellant’s appeal of the trial court’s Final Judgment on Equitable Distribution of Settlement. Claredon National Insurance Co. (“Appellee-Defendant”) was the insurer of Shaketa Brown (“Brown”) who was injured in an automobile accident in 2006. Brown was treated for injuries related to the accident by Accident Rehab Associates, Inc. (“Plaintiff”). Brown assigned all rights, title, and interest regarding payment of her medical bills to Plaintiff. Plaintiff signed a PIP Contingency Fee agreement with Mark J. Feldman, P.A. (“Appellant”) to pursue a claim for personal injury protection benefits. Plaintiff filed a Complaint and alleged that it had not received payment for the medical expenses from Appellee-Defendant. On August 4, 2009 Appellant filed its Motion to Withdraw, based on having been discharged by the Plaintiff. On November 5, 2009 the Motion to Withdraw was granted. On November 6, 2009 Appellant filed its Notice of Liens “for legal services and costs against the . . . plaintiff[,]” and the liens were to “attach to any recovery (settlement, final order, judgment, etc.) that may be used to satisfy, in whole or part, these liens.” Plaintiff then hired Jonathan R. Friedland, Esq. (“Friedland”). On March 24, 2010, the Appellee-Defendant filed a notice of Serving Third Proposal for Settlement and on March 30, 2010 filed Defendant’s Motion for Equitable Distribution of Settlement Proceeds (“Defendant’s Motion”), which was served on Appellant.
On April 30, 2010, Appellant filed Prior Plaintiff’s Counsels’ Verified Motion to Enforce Lien on Fees and Costs. Plaintiff then filed a Motion to Compel Settlement and Motion to Set Hearing on Attorney’s Fees and Costs, which was set for hearing and granted by the trial court. The trial court found that a charging lien was an equitable right and that given the facts and the case law provided, the court was bound by the $5,000.00 settlement amount designated for attorney’s fees and costs. Further, the court decided a second hearing would be held to determine the apportionment of fees. After the final hearing, the trial court entered its Final Judgment on Equitable Distribution of Settlement, finding the Appellant was entitled to 75 percent of the $5,000.00 attorney’s fees and costs settlement amount and Friedland was entitled to 25 percent.
Parties to a lawsuit may settle the dispute between themselves, without the participation of their attorney. Even under section 627.428 of the Florida Statutes, it is the insured, not the attorney, who is entitled to an award of attorney’s fees, and the amount of reasonable attorney’s fees and costs “is within the power of the insured to negotiate and settle.” Fortune Ins. Co. v. Gollie, 576 So. 2d 796, 797 (Fla. 5th DCA 1991). However, if the settlement is made without notice to a party’s attorney and without payment of the attorney’s fee due, then it is considered fraud upon the attorney. Brown v. Vermont Mut. Ins. Co., 614 So. 2d 574, 580 (Fla. 1st DCA 1993). Absent provisions in the fee agreement limiting the right to settle and absent bad faith, a client is free to settle a claim after the discharge of an attorney, and the discharged attorney is entitled only to a percentage of the settlement. Arabia v. Siedlecki, 789 So. 2d 380, 383 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D845a]. If the discharged attorney files a lien, that lien is chargeable against any person who holds money or property that will be proceeds of a judgment. Brown, 614 So. 2d at 580. A charging lien differs in nature from a claim for attorney’s fees. Rosenthal, Levy & Simon, P.A. v. Scott, 17 So. 3d 872, 874 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D1875e] (citing Zaldivar v. Okeelanta Corp., 877 So. 2d 927, 930-31 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D1714b]). A charging lien is an equitable right to have costs and fees due to an attorney for services in a specific action secured in the judgment or recovery in that action. Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1384 (Fla. 1983). Charging liens arose under common law and “[n]o statutes outline the requirements for valid attorney’s liens in Florida,” but “[r]ather, case law acts as the sole guide for both attorneys and courts as to these liens.” Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986).
The Appellant, relying on section 627.428 of the Florida Statutes, argues that the trial court erred by placing a cap on the attorney’s fees he could collect from Appellee-Defendant and by inequitably distributing the attorney’s fees. However, section 627.428 of the Florida Statutes is inapplicable in this case. First, Appellant’s Notice of Liens and a Verified Motion to Enforce Lien of Fees and Costs did not raise any statutory grounds for collecting fees and costs. Further, a charging lien is rooted in the common law, not statute. Appellant properly filed a lien to be able to collect fees that were owed to him. After reaching a settlement, the parties notified the trial court and the Appellant and sought to resolve the issue of attorney’s fees before disbursement. Appellant was not entitled to participate in settlement negotiations because he no longer represented any of the parties. Therefore, the parties were entitled to reach settlement without Appellant. There was no fraud upon the Appellant. Ultimately, since a charging lien attaches to the settlement or judgment, Appellant’s lien entitled him to collect his fees and costs from the proceeds of the settlement, not to seek to collect directly from Appellee-Defendant.
Where an attorney employed under a valid contingency fee contract is discharged without cause before the contingency has occurred and the attorney files a lien, the attorney is only entitled to recover the reasonable value for the services rendered prior to discharge and limited by the maximum contract fee. Arabia, 789 So. 2d at 383 (quoting Rosenberg v. Levin, 409 So. 2d 1016, 1021 (Fla. 1982)). The distribution of attorney’s fees comes under the equity jurisdiction of the trial court. De la Cruz v. Brown, 338 So. 2d 245, 246 (Fla. 3d DCA 1976). To compute the reasonable value of the discharged attorney’s services, the trial court may consider the totality of the circumstances surrounding the professional relationship between the attorney and client. Rosenberg, 409 So. 2d at 1022. Ultimately, “[a] quantum meruit award must be fair to both the attorney and client.” Santini v. Cleveland Clinic Florida, 65 So. 3d 22, 33 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1011a] (quoting Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366 (Fla. 1995) [20 Fla. L. Weekly S126a]). When reviewing an award of attorney’s fees, an appellate court will not disturb the lower court’s decision absent a clear abuse of discretion. Afrazeh v. Miami Elevator Co. of Am., 769 So. 2d 399, 401 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1863a]. The appellate court should reverse only if the trial court’s decision fails to satisfy the test of reasonableness. Id. (quoting Jones & Granger v. Johnson, 788 So. 2d 381, 384-85 (Fla. 1st DCA 2001) [26 Fla. L. Weekly D1581a]). Therefore, if there is competent substantial evidence that supports the trial court’s order under the totality of the circumstances, there is no abuse of discretion. Grapski v. City of Alachua, 134 So. 3d 987, 989 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1034b].
The Appellant urges this Court to apply a de novo standard of review because the trial court misapplied section 627.428 of the Florida Statutes. The Appellant contends that he has a statutory right to proceed against the Appellee for fees and that his claim is against the Appellee. However, section 627.428 of the Florida Statutes is inapplicable to Appellant’s claim for fees. Nevertheless, Appellant did have a valid and enforceable lien on the proceeds of any judgment or settlement. Therefore, the trial court had to ascertain the appropriate amount of attorney’s fees and costs, based on quantum meruit. The trial court did so by considering the facts and evidence introduced at the fee hearing and relying on the case law provided in pleadings and memoranda. Accordingly, the trial court did not abuse its discretion in entering the fee award.
Therefore, the trial court’s decision is AFFIRMED. Accordingly, Appellant’s Motion for Attorney’s Fees is DENIED. (LUCK and MILLAN, JJ., concur.)