THE MINEO SALCEDO LAW FIRM. P.A. v. LOLY CESARD and YANITE JEAN ( 2022 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THE MINEO SALCEDO LAW FIRM, P.A.,
Appellant,
v.
LOLY CESARD and YANITE JEAN CESARD,
Appellees.
No. 4D20-1761
[January 12, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Gerald Joseph Curley, Judge; L.T. Case No.
502016CA002039XXXXMBAA.
Peter Mineo, Jr., of The Mineo Salcedo Law Firm, P.A., Davie, for
appellant.
Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A.,
Jupiter, and Michael J. Celeste of Celeste Law Firm, West Palm Beach, for
appellees.
KLINGENSMITH, J.
Appellant The Mineo Salcedo Law Firm, P.A., represented appellees Loly
and Yanite Jean Cesard in a first-party property claim brought against
their insurance carrier. Appellant received notice that the Cesards filed a
complaint to The Florida Bar against two of the firm’s lawyers. 1 This
occurred after appellant worked on the Cesards’ claim for almost two years
and the firm’s lawyers recommended the Cesards accept a settlement offer
from the insurer. The Bar complaint ultimately prompted the firm to
withdraw and file a charging lien for fees incurred during its representation
to that point. The question presented to this court is whether the trial
court erred in failing to award reasonable fees pursuant to the charging
lien. Because various factual questions remain unanswered, we reverse
and remand for further proceedings.
1The Cesards stated in their Bar complaint that one of the firm’s lawyers used
profanity and was not forthcoming with documents related to the lawsuit and
settlement negotiations.
The facts in this case are largely undisputed. Upon receipt of the
complaint, the firm’s senior partner contacted the Bar’s ethics hotline for
an opinion on whether the Bar complaint created an irreconcilable conflict
of interest necessitating the firm’s withdrawal. The Bar responded that
the complaint created a conflict of interest sufficient to ethically require
the firm’s withdrawal from the case. After the trial court granted the firm’s
motion to withdraw, the Cesards withdrew their Bar complaint. 2
Thereafter, appellant filed its notice of charging lien.
The Cesards’ new counsel eventually settled the case, and the trial
court held an evidentiary hearing regarding the charging lien. At that
hearing, the firm presented expert testimony to corroborate its assertion
that a conflict indeed existed due to the Cesards’ Bar complaint and that
the Bar’s ethics rules made its withdrawal necessary under Rule
Regulating The Florida Bar 4-1.7(b)(1). The Cesards argued that because
they had a contingency fee agreement with the firm, and the firm
voluntarily withdrew from representation prior to the contingency
occurring, the firm was not entitled to any fees.
Because the firm created no contemporaneous time records, nor did it
ever locate the original signed fee agreement, the firm’s expert arrived at
his opinion regarding the reasonable amount of fees by reviewing the trial
docket, an unsigned contract purported to be of the kind that clients would
have signed, as well as several pages of handwritten time entries that were
not contemporaneously made. As a result, the expert opined that the firm
was entitled to compensation in the total amount of $82,630.00. Although
the Cesards’ new attorney testified at the hearing, they presented no expert
to opine on either the conflict of interest issue or the amount of the firm’s
reasonable attorney’s fees.
The trial court found the firm was not entitled to a lien for its fees but
awarded it $9,000.00 for costs, including expert fees, and $6,250.00 as
the value of the benefits provided, reduced by what the court described as
“the detriment incurred for the 11th hour, perhaps avoidable, withdrawal.”
In its ruling, the trial court concluded that the Cesards’ complaint did not
demonstrate conduct that would have automatically allowed the firm to
withdraw under Rule Regulating The Florida Bar 4-1.16(b). Additionally,
2 The evidence presented at the hearing showed that the firm withdrew from
representation less than two weeks before the start of the trial docket. Further,
at the hearing on the motion to withdraw, the firm represented to the court that
Mr. Cesard still wanted the firm to continue representing him despite filing of Bar
complaint.
2
the trial court found that discussions between the firm and the Cesards
might have resolved the issues without a withdrawal just before trial. The
trial court also included the following paragraph in its order about the
application of Faro v. Romani, 641 So. 2d 69 (Fla. 1994), to the firm’s claim
that a conflict of interest existed:
The Court accepts that [appellant’s senior partner] personally
felt that the bar complaint created differences between him
and the [Cesards] which would inhibit his continued
representation, and that he felt the substance of the [Cesards’]
bar complaint or his conduct made it difficult if not impossible
for [the senior partner] or a member of his firm to continue to
represent the plaintiffs. [The senior partner’s] decision to
withdraw has financial repercussions. As stated in Faro,
supra, “the existence of grounds for withdrawal does not
always translate into an attorney’s right to be paid for work
performed.” This is one such circumstance.
After the trial court issued its final order, this appeal followed.
“A party’s entitlement to attorneys’ fees is reviewed de novo.” De La
Riva v. Chavez, 303 So. 3d 955, 958 (Fla. 4th DCA 2020) (quoting Weiner
v. Maulden, 267 So. 3d 1045, 1047 (Fla. 4th DCA 2019)).
For nearly 170 years, the Florida Supreme Court has recognized “an
equitable right to have costs and fees due an attorney for services in the
suit secured to him in the judgment or recovery in that particular suit.”
Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428
So. 2d 1383, 1384 (Fla. 1983); see, e.g., Carter v. Davis, 8 Fla. 183 (1858);
Randall v. Archer, 5 Fla. 438 (1854)). The Florida Supreme Court
explained the basis for this right more than a century ago:
While our courts hold the members of the bar to strict
accountability and fidelity to their clients, they should afford
them protection and every facility in securing them their
remuneration for their services. An attorney has a right to be
remunerated out of the results of his industry, and his lien on
these fruits is founded in equity and justice.
Carter v. Bennett, 6 Fla. 214, 258 (1855).
A “charging lien is an equitable right to have costs and fees due an
attorney for services in the suit secured to him in the judgment or recovery
in that particular suit.” Walia v. Hodgson Russ LLP, 28 So. 3d 987, 989
3
(Fla. 4th DCA 2010) (quoting Rudd v. Rudd, 960 So. 2d 885, 887 (Fla. 4th
DCA 2007)). As a product of common law, “[n]o statutes outline the
requirements for valid attorney’s liens in Florida.” Daniel Mones, P.A. v.
Smith, 486 So. 2d 559, 561 (Fla. 1986). Instead, the proceedings are
equitable in nature, Nichols v. Korelinger, 46 So. 2d 722, 724 (Fla. 1950),
and subject to a well-developed body of case law, Sinclair, 428 So. 2d at1384–85. See Austin & Laurato, P.A. v. U.S., 539 F. App’x 957, 961 (11th
Cir. 2013) (“The requirements for imposing an attorney’s charging lien are
not codified in a Florida statute, but rather are governed by case law.”).
Case law in Florida also establishes the rules regarding an attorney’s
entitlement to recover fees under a contingency fee agreement where the
attorney either withdraws or is discharged prior to the occurrence of the
contingency. See Faro, 641 So. 2d 69; Kay v. Home Depot, Inc., 623 So.
2d 764 (Fla. 5th DCA 1993). When an attorney voluntarily withdraws from
representation of a client before the contingency occurs, the attorney
forfeits all rights to compensation unless the client’s conduct makes the
attorney’s continued performance either legally impossible or would cause
the attorney to violate an ethical rule, in which case the attorney may be
entitled to a fee when the contingency occurs. Faro, 641 So. 2d at 69–70;
Kay, 623 So. 2d at 764.
Bar Complaint and Withdrawal
Before addressing the charging lien at issue, we must address the firm’s
withdrawal from the case. The determination of whether the firm’s
withdrawal was voluntary or involuntary influences how the charging lien
is resolved. This court explained the general rule in Fid. Warranty Servs.,
Inc. v. Firstate Ins. Holdings, Inc., 98 So. 3d 672 (Fla. 4th DCA 2012):
If, prior to the conclusion of the case, the client discharges an
attorney employed under a contingency fee agreement without
cause, then the attorney may recover the reasonable value of
his services, as limited by the contract maximum. If an
attorney employed under a contingency fee agreement is
discharged for cause, he may recover in quantum meruit, with
such amount reduced by the damages suffered by the client
as the result of counsel’s misconduct. But, where an attorney
voluntarily withdraws from the representation prior to the
conclusion of the case, the attorney generally forfeits all right
to recover a fee. An exception is made, allowing the
withdrawing attorney to recover in quantum meruit, if the
client’s conduct made the attorney’s continued representation
4
legally impossible or if the client’s conduct would cause the
attorney to violate his or her ethical obligations.
Id. at 675 (citations omitted).
When an ethical dilemma results from a force within the lawyer’s
control and is not due to the client’s conduct, withdrawal will forfeit
compensation. Carbonic Consultants, Inc. v. Herzfeld & Rubin, Inc., 699
So. 2d 321, 324 (Fla. 3d DCA 1997). “Since the practice of law requires
that the interests of the client be considered before those of the attorney,
the burden must be on the attorney to show withdrawal was not only
mandated by ethical rules, but was also based on circumstances outside
the attorney’s control.” Id.The Florida Supreme Court in Faro ruled that an attorney may only be
entitled to a contingency fee “if the client’s conduct makes the attorney’s
continued performance of the contract either legally impossible or would
cause the attorney to violate the ethical rule of the Rules Regulating The
Florida Bar.” Faro, 641 So. 2d at 71. In that case, an attorney entered
into a contingency fee agreement to represent a client in an insurance
claim, but the attorney moved to withdraw based on “irreconcilable
differences” before the case went to trial. Id. at 70. Once the client had
obtained new counsel and settled the claim, the attorney sought to impose
a charging lien for the fees and costs associated with his representation of
the client. Id. The trial court ordered the client to pay a substantial
portion of his award to the attorney based on “quantum meruit and the
contractual agreement of the parties.” Id.On appeal, the Florida Supreme Court noted Rule 4-1.16(a) mandated
“an attorney withdraw if the representation will result in violation of the
Rules of Professional Conduct or law.” Id. at 71. The Court held that an
attorney who withdraws because continued representation (1) would be
illegal or (2) would violate an ethical rule of the Florida Bar, “may be
entitled to a fee when the contingency of an award occurs.” Id. However,
an attorney working on a contingency fee basis who withdraws of their
own volition forfeits all rights to compensation. Id. The Florida Supreme
Court held that the attorney in Faro should not have received
compensation because the record did not support a finding that the client’s
conduct created an ethical dilemma. Id.An expansive body of case law in Florida addresses an attorney’s
entitlement to a contingency fee where the attorney voluntarily withdraws
or is discharged from representation prior to the conclusion of a case. See,
e.g., Faro, 641 So. 2d at 71; Feldman v. Davis, 53 So. 3d 1132 (Fla. 4th
5
DCA 2011); Carbonic Consultants, 699 So. 2d at 323; Hernandez v. Philip
Morris USA, Inc., 306 So. 3d 362, 363–64 (Fla. 3d DCA 2020). However,
no Florida court appears to have provided guidance on whether an
attorney’s withdrawal because of a client’s Bar complaint is considered
voluntary or involuntary.
Nevertheless, DePena v. Cruz, 884 So. 2d 1062 (Fla. 2d DCA 2004), is
instructive on the Bar rules’ application to the exceptions enumerated in
Faro. In DePena, an attorney represented clients in a contingency-fee case,
but after the attorney recommended his clients accept a settlement offer,
they questioned his loyalty and competence. Id. at 1063. This led the
attorney to withdraw from the case, citing “irreconcilable differences.” Id.The now-former attorney requested a charging lien, claiming that he was
owed compensation under his contingency fee agreement. Id. The trial
court denied the lien. Id.On appeal, the attorney argued that Carbonic Consultants created an
additional exception to those laid out in Faro—one that allowed for
compensation after withdrawal when there was a “breakdown in the
attorney-client relationship.” Id. at 1064. The Second District rejected
that argument, declaring, “To the contrary, the case law, particularly in
this district, has followed Faro in stating that the two enumerated
exceptions in Faro are the only circumstances that justify a finding that
the attorney was entitled to the fee.” Id. The Second District noted that
no other case in the state had granted attorney’s fees after a withdrawal
under Faro simply because of a breakdown in the attorney-client
relationship. Id.The Faro rule has also been applied to situations where Rule 4-1.7
required an attorney to withdraw. See Smith & Burnetti, P.A. v. Faulk, 677
So. 2d 404, 404 (Fla. 2d DCA 1996) (holding that a law firm should receive
attorney’s fees because, due to the client’s actions, it had no ethical choice
but to terminate its relationship pursuant to Rule 4-1.7 and Faro); see also
Hernandez, 306 So. 3d at 363–64 (holding that an attorney who withdrew
from representation after their client “embarked on a course of untoward
conduct designed to undermine the integrity of the prosecution of the case
and subvert the judicial process” was allowed attorney fees under Faro).
Here, the firm’s senior partner testified that an ethical conflict arose
when the Cesards filed the Bar complaint following a disagreement over
their refusal to accept a settlement offer. He argued that the specter of
Bar sanctions stemming from the complaint loomed over the relationship,
involuntarily placing the firm in a position where it could no longer render
appropriate legal advice.
6
We take no issue with the firm’s belief that, under the circumstances,
its withdrawal from representation in this civil case was prudent. 3 Rule
4-1.7(a)(2) prohibits a lawyer from representing a client if “there is a
substantial risk that the representation . . . will be materially limited by
the lawyer’s responsibilities to another client, a former client or a third
person or by personal interest of the lawyer.” (Emphasis added). Despite
the tendency of courts to apply this rule in the context of multiple client
representation, by its own terms Rule 4-1.7 can apply to an attorney’s
interaction with just one client. Additionally, Rule 4-1.7(b)(1) allows a
lawyer to continue representing a client so long as “the lawyer reasonably
believes that the lawyer will be able to provide competent and diligent
representation to each affected client.”
Whether the Bar rules required the firm’s withdrawal does not end the
inquiry. As the trial court correctly opined, “[a]s stated in Faro, supra, ‘the
existence of grounds for withdrawal does not always translate into an
attorney’s right to be paid for work performed.’” However, the trial court
erred in ruling that Rule 4-1.7(b)(1) applied only to situations involving
multiple clients’ interests. Nothing in that rule’s provisions prohibited the
firm from falling within one of the Faro exceptions.
While no Florida state cases are on point, a federal case from the
Southern District of Florida provides guidance on how to resolve these Bar
complaint disputes. In Aldar Tobacco Grp., LLC, v. Am. Cigarette Co., No.
08-62018-CIV, 2013 WL 12086251 (S.D. Fla. Feb. 7, 2013), an attorney
withdrew from a case, citing a conflict of interest arising from the
representation of his clients in another matter and the resulting Bar
complaint filed against him. Following the attorney’s withdrawal, he asked
for a charging lien in the case. Id. at *1. When the case later settled, the
client objected to the lien, alleging that it entered into an oral contingency
fee agreement with the attorney, and that because the attorney withdrew
from representation before the contingency occurred, he waived any claim
3 We recognize that the filing of a Bar complaint does not necessarily create a
conflict between attorney and client. The Florida Supreme Court has ruled in the
criminal context that “the filing of a Bar complaint does not per se constitute a
conflict of interest.” Hutchinson v. State, 17 So. 3d 696, 703–04 (Fla. 2009);
Connor v. State, 979 So. 2d 852, 861 (Fla. 2007) (denying relief on a conflict of
interest claim when the defendant filed a Florida Bar complaint against his
counsel because he failed to demonstrate how the complaint impacted the
counsel’s performance or decision-making). Our court has also perceived “that
the filing of the [Bar] complaint creates [no] more actual conflict than the
allegations of ineffective assistance of counsel.” Boudreau v. Carlisle, 549 So. 2d
1073, 1077 (Fla. 4th DCA 1989).
7
to fees. Id. The trial court conducted an evidentiary hearing to determine
whether it was the client’s conduct which necessitated the lawyer’s
withdrawal from representation or whether it was the attorney’s behavior
that was adverse to his client’s interests and created the conflict. Id. at
*2. The court found that the actions of the lawyer, not the client, created
the situation, and as a result, the court struck the notice of charging lien
and denied the attorney a fee award. Id. at *6.
In this case, the trial court granted the firm’s motion to withdraw, even
though it occurred at the “eleventh hour” before trial. We have no record
of the court taking testimony to sort out the factual basis of the Cesards’
Bar complaint. Consistent with Faro, the trial court had to determine
whether it was the Cesards’ or the firm’s conduct that made continued
representation either legally impossible or would have caused the attorney
to violate an ethical rule of The Florida Bar. Faro, 641 So. 2d at 71. To do
so, the trial court had to hear evidence about the Bar complaint’s merits.
The trial court’s only finding below was that the existence of grounds for
withdrawal did not translate into the attorney’s right to be paid, yet it made
no factual findings regarding who bore responsibility for creating the
attorney-client rift.
Award of Fees under Quantum Meruit
If the firm is entitled to a fee, that award must be based upon quantum
meruit but without a lodestar. See Faulk, 677 So. 2d at 404.
To satisfy the elements of quantum meruit, the [firm] must
prove that “[it] provided, and the [former client] assented to
and received, a benefit in the form of goods or services under
circumstances where, in the ordinary course of common
events, a reasonable person receiving such a benefit normally
would expect to pay for it.”
F.H. Paschen, S.N. Nielsen & Assocs. LLC v. B&B Site Dev., Inc., 311 So. 3d
39, 48 (Fla. 4th DCA 2021) (quoting W.R. Townsend Contracting, Inc. v.
Jensen Civil Constr., Inc., 728 So. 2d 297, 305 (Fla. 1st DCA 1999)). “The
measure of damages in a quantum meruit action is the reasonable value
of the labor performed and the market value of the materials furnished.”
Id. at 50 (citing Dean v. Blank, 267 So. 2d 670, 671 (Fla. 4th DCA 1972)).
The Florida Supreme Court established the proper criteria for
determining a quantum meruit recovery in Searcy, Denney, Scarola,
Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366 (Fla. 1995):
8
[A] quantum meruit award must take into account the actual
value of the services to the client. Thus, while the time
reasonably devoted to the representation and a reasonable
hourly rate are factors to be considered in determining a
proper quantum meruit award, the court must consider all
relevant factors surrounding the professional relationship to
ensure that the award is fair to both the attorney and client.
See Reid, Johnson, Downes, Andrachik & Webster v.
Lansberry, 68 Ohio St. 3d 570, 629 N.E.2d 431, 436–437
(1994) (totality of circumstances surrounding each situation
should be considered in determining reasonable value of
discharged contingent-fee attorney’s services in quantum
meruit). Application of the factors set forth in Rule Regulating
The Florida Bar 4–1.5(b), may provide a good starting point.
However, because the factors relevant to the determination of
the reasonable value of services rendered will vary from case
to case, the court is not limited to consideration of the [Florida
Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.
1985),] factors. The court must consider any other factors
surrounding the professional relationship that would assist
the court in fashioning an award that is fair to both the
attorney and client. For example, the fee agreement itself, the
reason the attorney was discharged, actions taken by the
attorney or client before or after discharge, and the benefit
actually conferred on the client may be relevant to that
determination. The determination as to which factors are
relevant in a given case, the weight to be given each factor and
the ultimate determination as to the amount to be awarded
are matters within the sound discretion of the trial court.
Id. at 369 (footnotes omitted).
If the evidence shows the Cesards’ conduct caused an ethical conflict,
i.e., by filing a meritless Bar complaint, then the firm’s withdrawal was
involuntary, and the firm may be awarded fees based upon a quantum
meruit. See Hernandez, 306 So. 3d at 363–64 (holding that an attorney
was allowed attorney’s fees under Faro when his withdrawal was caused
by client’s untoward conduct); Poletz, 652 So. 2d at 369. But if the court
finds that the firm’s actions are to blame for the dispute, the firm’s
withdrawal is deemed voluntary, and they are not entitled to a fee. See
Faro, 641 So. 2d at 71; see also Santini v. Cleveland Clinic Fla., 65 So. 3d
22, 30 (Fla. 4th DCA 2011) (“We also find cases from other jurisdictions
persuasive in holding that withdrawing from a case because of a bar
suspension constitutes withdrawing on one’s own volition.”).
9
The Charging Lien
If the court finds the firm’s withdrawal to be involuntary, the court must
then consider the validity and application of the charging lien. Proceedings
to resolve a charging lien for legal services are equitable in nature;
therefore, any applicable equitable defense may be asserted. See Nichols,
46 So. 2d at 724.
For an attorney to impose a valid charging lien, four requirements must
be met: (1) an express or implied contract between the attorney and the
client; (2) timely notice of the lien; (3) either an attempt to avoid the
payment of fees or costs or a dispute as to the amount involved; and (4)
an express or implied understanding between the parties for the payment
of fees or costs from the client’s recovery. See Daniel Mones, P.A., 486 So.
2d at 561; Sinclair, 428 So. 2d at 1385. We consider each of these
requirements in the context of this case.
1) An express or implied contract between the attorney and the
client
For purposes of addressing the Cesards’ opposition to the firm’s
charging lien, the trial court must decide whether the fee arrangement
between the parties was on a contingency basis. Based upon the
testimony of the senior partner and the expert, and their unrebutted
description of the firm’s arrangement with the Cesards, the court found
that this case was taken on a contingency basis. We agree.
The arrangement here was somewhat unique because instead of a
percentage contingency fee contract based on the amount the Cesards
recovered, the agreement provided that the recovery of attorney’s fees by
settlement or court award is part of the fee agreement. In other words,
any earned attorney’s fees would not be paid on a percentage of the
settlement, which the client obtained in remuneration for their loss, but
rather would be set either by a fees settlement with the insurer or by a
court-determined award against the insurer. Nonetheless, the firm’s
recovery of fees was contingent upon a recovery by the Cesards as the
triggering event, even if the fees were to be paid by a third party. This
satisfies the definition of a contingency fee agreement.
2) Timely notice of the lien
The equitable remedy of enforcing a charging lien in the original action
is generally preferred to a proceeding at law for the collection of fees.
10
Daniel Mones, P.A., 486 So. 2d at 561. For the notice of the filing to be
timely, “a charging lien must be filed ‘before the lawsuit has been reduced
to judgment or dismissed pursuant to settlement.’” Levine v. Gonzalez,
901 So. 2d 969, 974 (Fla. 4th DCA 2005) (quoting Heller v. Held, 817 So.
2d 1023, 1025–26 (Fla. 4th DCA 2002)). Such proper notice is necessary
to perfect the lien. Baker & Hostetler, LLP v. Swearingen, 998 So. 2d 1158,
1161 (Fla. 5th DCA 2008). The filing of a charging lien typically occurs
before the outcome of the case is known unless the trial court reserves
jurisdiction to address attorney’s fees. See id. at 1161–62. Here, because
the firm filed and pursued its charging lien after the case was settled but
before it was dismissed, it gave timely notice to the Cesards.
3) Either an attempt to avoid the payment of fees or costs or a
dispute as to the amount involved
As it happens in many such disputes, this case presents both. As
demonstrated in the underlying proceedings, the Cesards attempted to
avoid paying their former counsel the contingency fee and costs described
in the parties’ agreement. The Cesards also disputed the amount of any
award of attorney’s fees to the firm; that is, to the extent that the firm is
entitled to a fee award, the Cesards argue the fee award may not be offset
from their settlement and certainly not in the amount requested.
4) An express or implied understanding between the parties for
the payment of fees or costs from the client’s recovery
Although the firm could not produce the parties’ signed fee agreement,
the firm presented to the trial court a sample unsigned fee agreement
containing the same terms which the firm claimed were in the signed fee
agreement. Among other things, this sample fee agreement stated in
pertinent part, “Any attorney’s fees earned by attorney will not be paid out
of any money Client recovers from Client’s damages but will instead be paid
separately by Client’s opponents, either by settlement or court award.”
(Emphasis added). This fee agreement implies an understanding between
the Cesards and the firm that payment is dependent upon recovery. See
Baucom, 428 So. 2d at 1385 (the understanding required to meet this
requirement is that “the payment is either dependent upon recovery or that
payment will come from the recovery”) (emphasis added).
Attachment of the Charging Lien
Under Florida law, a charging lien attaches only to the “tangible fruits”
of the attorney’s services. See Rudd, 960 So. 2d at 887 (quoting Mitchell
v. Coleman, 868 So. 2d 639, 641 (Fla. 2d DCA 2004)); Correa v.
11
Christensen, 780 So. 2d 220, 220 (Fla. 5th DCA 2001). “If the litigation
produces no judgment of monetary value for the client, the court may not
impose a charging lien for the attorney’s benefit.” Walia, 28 So. 3d at 989.
To support a charging lien, a firm must do more than assert it has
provided services. “[T]he services must, in addition, produce a positive
judgment or settlement for the client, since the lien will attach only to the
tangible fruits of the services.” Id. (quoting Rudd, 960 So. 2d at 887).
Here, while the firm’s efforts may have assisted the Cesards in ultimately
obtaining a favorable settlement, the trial court has not made sufficient
findings as to whether the firm’s services created tangible fruits for the
client’s benefit to which the charging lien may attach. Id.; see Joel M.
Weissman, P.A. v. Abou-Sayed, 107 So. 3d 1163, 1164 (Fla. 4th DCA 2013)
(“Whether an attorney’s services produced ‘tangible fruits’ is an issue of
proof.”).
Attorney’s Fee Recovery
As anticipated by its fee contract, the firm agreed its compensation
would be satisfied only through attorney’s fees paid by the insurer through
settlement or by court order. The trial court correctly found that nothing
in the parties’ agreement supported the claim that the Cesards pay a
percentage of their loss settlement to the firm, because the parties’ fee
agreement did not provide that they were obligated to pay a fee from those
proceeds. As the trial court noted, the contract states that attorney’s fees
are paid by the insurance carrier upon successful conclusion of the case.
In such cases, the firm would not ordinarily receive its fee out of the clients’
settlement upon withdrawal if the firm did not contract for nor expect a
fee from those funds upon the successful conclusion of the case.
However, because proceedings to resolve charging liens are resolved by
courts of equity, see Nichols, 46 So. 2d at 724, the equitable defense of
unclean hands may be asserted against a party challenging a charging
lien. See State Contracting & Eng’g Corp. v. Condotte Am., Inc., No. 97-
7014-CV, 2004 WL 5500705, at *15 (S.D. Fla. Oct. 26, 2004). As a result,
if a party is found to have unclean hands, the court has more latitude to
fashion its remedy. See Ocean View Towers, Inc. v. First Fid. Sav. & Loan
Ass’n, 521 So. 2d 325, 326 (Fla. 4th DCA 1988). “It is certainly beyond
question that ‘one who comes into equity must come with clean hands else
all relief will be denied him regardless of the merits of his claim.’” Id.(quoting Roberts v. Roberts, 84 So. 2d 717, 720 (Fla. 1956)).
Because the firm had no role in negotiating the terms of the settlement
between the Cesards and their insurer, the firm is not bound by any
12
agreement within that settlement apportioning how much of the total
amount is loss compensation and how much is for fees and costs. See
ConSeal Int’l Inc. v. Neogen Corp., 488 F. Supp. 3d 1257, 1269 (S.D. Fla.
2020). At the evidentiary hearing, the Cesards did not present any
evidence that the insurer paid a separate sum representing fees and costs,
nor any agreement indicating whether the settlement amount was to be
apportioned to offset fees and costs. Consequently, the firm is not limited
to having any fee award satisfied solely out of monies that may have been
part of an agreed-upon apportionment.
Conclusion
Although the trial court’s order treated the firm’s withdrawal as
voluntary without making any findings of fact adduced from evidence to
support that conclusion, the trial court nonetheless awarded
compensation in the form of $9,000.00 in costs as well as $6,250.00 for
what it said was “the value of the benefits provided as reduced by the
detriment incurred for the 11th hour, perhaps avoidable, withdrawal.”
This was error because the law provides that a fee award is applicable only
where a court finds the attorney’s withdrawal to be involuntary. Faro, 641
So. 2d at 71. As previously stated, this fee must be “based upon a quantum
meruit following an evidentiary hearing without a lodestar.” Faulk, 677 So.
2d at 404; see Poletz, 652 So. 2d at 368–69.
The trial court’s order also failed to include any findings of fact
indicating how it arrived at this amount of compensation or to clearly
indicate that it was based on quantum meruit. Based on the record before
us, we are unable to resolve the inconsistency between the trial court’s
finding of voluntary withdrawal and its decision to award fees.
For these reasons, we reverse the trial court’s order and remand for an
evidentiary hearing to determine (1) whether the firm’s withdrawal was
voluntary or involuntary, and (2) if the firm’s withdrawal was involuntary,
whether the firm’s charging lien attaches.
Reversed and remanded with instructions.
LEVINE and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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