WILLIAM O'MALLEY v. BRIAN FREEMAN, ESQ., and THE FREEMAN LAW FIRM, P.A. , 241 So. 3d 204 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIAM O’MALLEY,
Appellant,
v.
BRIAN FREEMAN, ESQ., and THE FREEMAN LAW FIRM, P.A.,
Appellees.
No. 4D17-1500
[April 4, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; David E. French, Judge; L.T. Case No. 50-2010-CA-003492
XXXX MB AJ.
Steven R. Browning and Xavier T. Saunders of Spohrer & Dodd, P.L.,
Jacksonville, for appellant.
Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm
Beach Gardens, for appellees.
PER CURIAM.
Appellant William O’Malley appeals an order awarding Appellees Brian
Freeman and the Freeman law firm $83,379.47 in attorney’s fees and costs
for work performed by Freeman as attorney for Appellant on a contingency
fee basis. We reverse the award because the trial court erred in finding
the parties had an enforceable agreement. However, as services were
performed by Freeman and a benefit was received by Appellant, the trial
court may award Freeman fees and costs on a quantum meruit basis. As
such, we remand this issue to the trial court, with the measure of fees to
be calculated utilizing the analysis discussed in Searcy, Denney, Scarola,
Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366 (Fla. 1995).
Background
Appellant was in a car wreck leaving him in a coma for months. During
this period, his mother signed a personal injury contingency fee contract
as “personal representative of the estate of William O’Malley.” However,
Appellant had not executed a power of attorney, had not been declared
legally incompetent, and had not been appointed a legal guardian. Soon
after waking, he signed a document giving his mother power of attorney.
Appellant’s mother later testified that he was “totally incapacitated at that
time.”
Freeman claimed that he had several phone conversations with
Appellant and that Appellant knew Freeman had filed suit on his behalf.
Appellant later terminated the representation without explanation.
Freeman never claimed to have shown the fee agreement to Appellant or
otherwise attempted to have him ratify it.
The trial court found that Appellant ratified the fee agreement signed
by his mother and that the “times and fees submitted by Freeman [we]re
fair and reasonable for like services within the community.” The trial court
made an oral ruling as well, noting that Freeman’s work “probably would
have been of great benefit if there had been better communication but
under the circumstances it’s unjust for someone . . . to work on a case and
. . . get discharged without any real explanation.” The court awarded the
sum Freeman sought, minus the work performed after his discharge.
Analysis
To the extent that a trial court’s order on attorney’s fees is based on an
interpretation of the law, we have de novo review. Ferere v. Shure, 65 So.
3d 1141, 1144 (Fla. 4th DCA 2011). Otherwise, particularly with respect
to the amount of the award, the standard of review is abuse of discretion.
Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A.,
971 So. 2d 955, 956 (Fla. 5th DCA 2007).
Every lawyer who accepts a retainer or enters into an
agreement, express or implied, for compensation for services
rendered or to be rendered in any action, claim, or proceeding
whereby the lawyer’s compensation is to be dependent or
contingent in whole or in part upon the successful
prosecution or settlement thereof shall do so only where such
fee arrangement is reduced to a written contract, signed by
the client, and by a lawyer for the lawyer or for the law firm
representing the client. No lawyer or firm may participate in
the fee without the consent of the client in writing. Each
participating lawyer or law firm shall sign the contract with
the client and shall agree to assume joint legal responsibility
to the client for the performance of the services in question as
if each were partners of the other lawyer or law firm involved.
The client shall be furnished with a copy of the signed contract
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and any subsequent notices or consents. All provisions of this
rule shall apply to such fee contracts.
R. Regulating Fla. Bar 4-1.5(f)(2) (emphases added).
The trial court erred in finding that Appellant ratified the contingent fee
agreement. There was no testimony—let alone competent substantial
evidence—that he saw the written contingent fee agreement, nor that he
signed it, as required by the Bar Rule. Contingent fee agreements that do
not comply with the regulations are “void as against the public interest.”
Chandris, S.A. v. Yanakakis, 668 So. 2d 180, 181 (Fla. 1995); see also
Bakos v. Bakos, 950 So. 2d 1257, 1259-60 (Fla. 2d DCA 2007) (noting that
a void contract cannot be ratified).
Even if the agreement at issue here was merely voidable, Appellant did
not ratify the agreement. Any finding below of ratification by Appellant’s
post-coma communications with Freeman was erroneous. A promise to
honor a contingent fee contract after competency is restored may suffice
for ratification, but the promise must be “positive and explicit. . . . A mere
acknowledgment is not sufficient.” Lee v. Thompson, 168 So. 848, 850
(Fla. 1936). Freeman has not argued that Appellant was ever given a copy
of the Personal Injury Contingency Fee Contract or had its terms explained
to him, let alone signed an agreement with Freeman providing for
retroactive application. In fact, there is no evidence that Appellant had
knowledge of the details of the contingent fee agreement signed by his
mother. Thus, there is no basis to conclude that Appellant ratified the fee
agreement.
Nevertheless, even without a valid agreement, Freeman could still
recover on a quantum meruit basis. See Chandris, 668 So. 2d at 186 n.4;
Lackey v. Bridgestone/Firestone, Inc., 855 So. 2d 1186, 1188 (Fla. 3d
2003) (citing footnote four in Chandris for the proposition that “[u]nder
Florida law, an attorney who has no contingent fee agreement with a client
is only entitled to recover on a quantum meruit basis.”). On remand, in
calculating the proper amount of fees for work performed by Freeman prior
to being discharged, the trial court must consider “the totality of the
circumstances surrounding the professional relationship,” taking “into
account the actual value of the services to the client.” Poletz, 652 So. 2d
at 369 (first quoting Rosenberg v. Levin, 409 So. 2d 1016, 1022 (Fla.
1982)); see also Santini v. Cleveland Clinic Fla., 65 So. 3d 22, 33 (Fla. 4th
DCA 2011) (holding “the trial court erred as a matter of law by failing to
consider the totality of the circumstances present in this case, instead
considering only the time reasonably expended and the reasonable hourly
rate for the services.” (quoting Poletz, 652 So. 2d at 369)).
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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.
Poletz, 652 So. 2d at 369 (footnote omitted).
Among the factors that the trial court should take into account in this
case are: (1) the lack of a ratified fee agreement; (2) the circumstances
under which Freeman commenced legal services on behalf of Appellant,
with an agreement signed by the mother of an incapacitated adult who
had not signed a power of attorney agreement, and for whom time was of
the essence in commencing a legal claim; and (3) the initial
miscommunication between Freeman and Appellant’s second set of
attorneys as to the time and services expended by Freeman prior to his
discharge, resulting in the new attorneys duplicating work that Freeman
had already completed in the case. These factors are not exclusive and
are in addition to consideration of the actual value of the services to the
client.
Conclusion
As set forth above, we reverse with respect to the trial court’s
determination that the fee agreement signed by Freeman and Appellant’s
mother had been ratified by Appellant. We remand for the trial court to
conduct a Poletz “totality of the circumstances” analysis in determining
Freeman’s entitlement to a quantum meruit award and the specific
calculation of such an award.
Reversed and remanded.
LEVINE, CONNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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