LAW OFFICES OF THEODORE GOLDBERG AND CARLOS AND PEIDAD PACHON, APPELLANTS,
v.
FAZIO, DAWSON, DISALVO, CANNON, ABERS & PODRECCA, APPELLEE
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A personal injury case where the initial attorney was discharged before recovery was obtained, and the successor attorney secured settlement. The court reversed a judgment awarding the fired attorney 40% contingency fee, holding that since the contingency (recovery) did not occur during his representation, he is entitled only to quantum meruit compensation.
The discharged attorney is not entitled to the contingency fee because the contingency event (recovery) did not occur during his representation. The attorney is entitled only to quantum meruit compensation, to be determined by the trial court considering the totality of the circumstances and any detriment caused by the attorney's handling of the case.
[1] A contingency fee agreement is erroneously enforced when the specified contingency has not occurred prior to the attorney's discharge.
[2] An attorney discharged before the occurrence of a contingency is entitled to recovery in quantum meruit.
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Join FLexlaw to unlock all legal intelligence“It is apparent that the appellee was fired well prior to any "recovery" for the personal injury action — which was the basis of the contingency fee agreement — and that it was the new lawyer who effected the payment of the policy limits by the tortfeasors' insurance company along with a sum from the defendants themselves and the disposition of the PIP and other claims.”
Establishes the factual basis that the discharged attorney did not accomplish the contingency event
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Join FLexlaw to unlock all legal intelligenceThe appellee law firm was hired to represent the plaintiffs in a personal injury action under a contingency fee agreement. The firm was fired well bef…
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SCHWARTZ, Chief Judge.
The plaintiffs in a personal injury case and their successor attorney appeal from a judgment awarding a forty percent contingency fee to their initial lawyer. We reverse.
It is apparent that the appellee was fired well prior to any “recovery” for the personal injury action — which was the basis of the contingency fee agreement — and that it was the new lawyer who effected the payment of the policy limits by the tortfeasors’ insurance company along with a sum from the defendants themselves and the disposition of the PIP and other claims. Since the pertinent contingency did not occur, it was entirely erroneous to enforce the contingency fee agreement. See Rosenberg v. Levin, 409 So. 2d 1016 (Fla.1982); Barwick, Dillian & Lambert, P.A. v. Ewing, 646 So. 2d 776 (Fla. 3d DCA 1994), review denied, 659 So. 2d 271 (1995); Sohn v. Brockington, 371 So. 2d 1089 (Fla. 1st DCA 1979), cert. denied, 383 So. 2d 1202 (Fla.1980).
Kopplow & Flynn, P.A. v. Trudell, 446 So. 2d 1066 (Fla. 3d DCA 1984), pet. for review denied, 453 So. 2d 44 (Fla.1984) is closely on point. See also Trend Coin Co. v. Fuller, Feingold and Mallah, P.A., 538 So. 2d 919 (Fla. 3d DCA 1989).
Milton Kelner, P.A. v. 610 Lincoln Road, Inc., 328 So. 2d 193 (Fla.1976) and King v. Nelson, 362 So. 2d 727 (Fla. 2d DCA 1978), in both of which the specific contingency had already occurred before the discharge, are not.
Hence, the appellee law firm is entitled only to a quantum meruit recovery which should be determined after remand considering the “totality of the circumstances surrounding the professional relationship.” Rosenberg, 409 So. 2d at 1022; see Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366 (Fla.1995); Baker Protective Servs. v. FP Inc., 659 So. 2d 1120 (Fla. 3d DCA 1995); Trend Coin Co., 538 So. 2d at 919; Stabinski, Funt & De Oliveira, P.A. v. Law Offices of Frank H. Alavarez, 490 So. 2d 159 (Fla. 3d DCA 1986), review denied, 500 So. 2d 545 (Fla.1986).
We point out that, in fixing the quantum meruit amount, the trial court should consider that some aspects of the appellee’s handling of the case may have actually disadvantaged the clients. See Searcy, 652 So. 2d at 366, 369 n. 5; Riesgo v. Weinstein, 523 So. 2d 752 (Fla. 2d DCA 1988).1 It should also be noted that since the successor lawyer, the appellant Goldberg, also has a quantum meruit claim against the clients it may be necessary that they obtain new counsel in any further proceedings below. See Perez v. George, Hartz, Lundeen, Flagg & Fulmer, — So. 2d -, - [1995 WL 366680] (Fla. 3d DCA Case no. 94-1048, opinion filed, June 21,1995) [20 FLW D1437, D1438],
Reversed and remanded with directions.
. We have considered, but rejected, the possibility that the appellee’s alleged derelictions were serious enough to deprive it of a fee entirely. See Searcy, Denney, Scarola, Barnhart & Shipley, P.A., 629 So. 2d 947 (Fla. 4th DCA 1993), review denied, 649 So. 2d 870 (Fla.1994). Compare Spence, Payne, Masington & Grossman, P.A. v. Philip M. Gerson, P.A., 483 So. 2d 775 (Fla. 3d DCA 1986), review denied, 492 So. 2d 1334 (Fla.1986); Jackson v. Griffith, 421 So. 2d 677 (Fla. 4th DCA 1982).
Cases With Similar Vibessemantic neighbors from the corpus
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Afrazeh v. Miami Elevator Co. OF Am., 769 So. 2d 399 (Fla. 3d DCA 2000)…uting the reasonable value of the discharged attorney’s services. See Doremus v. Florida Energy Systems of South Florida, Inc., 676 So. 2d 444 (Fla. 4th DCA 1996); Law Offices of Theodore Goldberg v. Fazio, Dawson, DiSalvo, Cannon, Abers & Podrecca, 659 So. 2d 1200 (Fla. 3d DCA 1995). Here, Klemick was able to obtain a settlement offer of $157,000 prior to being discharged without cause. Klemick filed a charging lien against any future recovery and waited for Afrezah to collect on his claim. Once Afrazeh sett…
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Frank J. Pepper, Inc. v. Vining, 783 So. 2d 1160 (Fla. 3d DCA 2001)…reduction to the lodestar. Id. . The Poletz criteria has been extended to apply where a firm or attorney is: discharged prior to completion of the representation Law Offices of Theodore Goldberg v. Fazio, Dawson, DiSalvo, Cannon, Abers & Podrecca, 659 So. 2d 1200 (Fla. 3d DCA 1995); discharged for cause Kushner v. Engelberg, Cantor & Leone, P.A., 750 So. 2d 33 (Fla. 4th DCA 1999); and where the attorney withdraws without any fault of the client before completion of the case Faro v. Romani, 629 So. 2d 872 (Fl…
Authorities Cited (13 total)
- Rosenberg v. Levin, 409 So. 2d 1016 (Fla. 1982)
- Searcy v. Paige N. Poletz, 652 So. 2d 366 (Fla. 1995)
- Spence, Payne, Masington & Grossman, P.A. v. Philip M. Gerson, P.A., 483 So. 2d 775 (Fla. 3d DCA 1986)
- Milton Kelner, P.A. v. 610 Lincoln Rd., Inc., 328 So. 2d 193 (Fla. 1976)
- Sohn v. Brockington, 371 So. 2d 1089 (Fla. 1st DCA 1979)
- Stabinski, Funt & DE Oliveira, P.A. v. LAW Offs. OF Frank H. Alvarez, 490 So. 2d 159 (Fla. 3d DCA 1986)
- Riesgo v. Ira Weinstein, 523 So. 2d 752 (Fla. 2d DCA 1988)
- Searcy v. Zbigniew Scheller, 629 So. 2d 947 (Fla. 4th DCA 1993)
- Trend Coin Co. v. Fuller, Feingold & Mallah, P.A., 538 So. 2d 919 (Fla. 3d DCA 1989)
- Baker Protective Servs. v. FP Inc. & Fid. & Deposit Co. of Md., 659 So. 2d 1120 (Fla. 3d DCA 1995)