C. GIOVANNI MUENTES a/k/a CARLOS G. MUENTES and MICHELE RUIZ v. BRUCE ROSENWATER & ASSOCIATES, P.A. ( 2023 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
C. GIOVANNI MUENTES a/k/a CARLOS G. MUENTES
and MICHELE RUIZ,
Appellants,
v.
BRUCE S. ROSENWATER & ASSOCIATES, P.A.,
Appellee.
No. 4D22-356
[January 11, 2023]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Sarah Shullman, Judge; L.T. Case No. 50-2020-SC-
018671-XXXX-MB.
Thomas J. Gruseck, West Palm Beach, for appellants.
Bruce S. Rosenwater of Bruce S. Rosenwater & Associates, P.A., West
Palm Beach, for appellee.
DAMOORGIAN, J.
Appellants, C. Giovanni Muentes a/k/a Carlos G. Muentes and Michele
Ruiz (“Clients”), appeal a final judgment awarding Appellee, Bruce S.
Rosenwater & Associates, P.A. (“Law Firm”), previously incurred attorney’s
fees as an element of compensatory damages. For the reasons discussed
below, we reverse the portion of the final judgment awarding Law Firm
attorney’s fees for the first six months of representation.
Relevant to our decision are the following facts adduced during a bench
trial. Clients entered into a retainer agreement with Law Firm for
representation in a foreclosure action. The agreement provided in
pertinent part:
RETAINER
As payment towards your retainer, you have paid an initial
retainer in the amount of $3,000.00. This is a non-
refundable engagement fee. It also will be depleted by a
$500.00 monthly fee against it. When the initial retainer is
depleted, an additional retainer may be required, and you will
be billed on an hourly basis for work performed. . . .
....
REASONABLENESS OF FEES
If, at any time, the Client believes the bill is not reasonable,
the Client will notify the Firm, in writing, within thirty (30)
days of the date of the bill, and the Client and the Firm will
review the bill together. If no notice is received, it is understood
that the billing statement is accepted as correct, accurate, and
reasonable.
(italicized emphasis added).
Consistent with the retainer agreement, Clients paid the initial $3,000
retainer fee, and Law Firm charged $500 a month against the fee for the
first six months of representation. Notably, during those first six months,
Law Firm also separately billed Clients on an hourly basis for work
performed. Law Firm continued to represent Clients for several months
beyond the initial six-month period, billing on an hourly basis for work
performed. When Clients failed to pay any amount beyond the initial
$3,000 retainer fee, Law Firm withdrew from the case and filed a breach
of contract action against Clients.
The case ultimately proceeded to trial during which Law Firm sought
damages in the amount of $6,728.80. This amount included attorney’s
fees incurred during the first six months of representation in the
foreclosure action beyond the $3,000 retainer fee. The primary point of
contention at trial was whether, under the terms of the retainer agreement,
Law Firm was permitted to bill Clients in excess of the $3,000 retainer fee
for the first six months of representation. In support of its argument that
it was permitted to bill Clients beyond the $3,000, Law Firm explained that
the $500 monthly charge against the initial retainer represented an
installment towards the final total fee for the case—akin to a payment plan.
Clients countered that the agreement called for a flat fee of $500 a month
for the first six months payable in advance in the amount of $3,000.
Thereafter, Law Firm would bill for hours worked beyond the first six
months at the agreed upon hourly rates.
The court ultimately found the contract contained a latent ambiguity
and entered a final judgment containing the following findings:
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The [c]ourt finds that the Retainer Agreement contains a
latent ambiguity. On its face, the Retainer provision provides
that there is a $500.00 monthly fee against the $3,000.00
retainer, and, when depleted, the clients would be billed on an
hourly basis. In other words, [Clients] would be charged
$500.00 a month for six (6) months and then hourly billing
thereafter. This, in fact, is the interpretation offered by
[Clients]. The contract appears to be clear and unambiguous.
However, [Law Firm] testified through Mr. Rosenwater that the
$500.00 monthly fee is not a “flat fee” as the term implies.
Rather, under this type of billing structure, clients are still
billed the normal hourly rate multiplied by the number of
hours expended, but only charged at $500.00 a month, like a
payment plan.
(first emphasis added). This appeal follows.
We review a trial court’s determination that a contract is ambiguous de
novo. See Fla. Inv. Grp. 100, LLC v. Lafont, 271 So. 3d 1, 4 (Fla. 4th DCA
2019). “Where the terms of a contract are clear and unambiguous, the
parties’ intent must be gleaned from the four corners of the document.”
Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla. 2011); see also Sheen v.
Lyon, 485 So. 2d 422, 424 (Fla. 1986) (when contract language “is clear
and unambiguous a court cannot entertain evidence contrary to its plain
meaning”). Moreover, whether contract terms are ambiguous depends on
whether the terms are reasonably susceptible to more than one
interpretation. Lambert v. Berkley S. Condo. Ass’n, 680 So. 2d 588, 590
(Fla. 4th DCA 1996). “An agreement is ambiguous if as a whole or by its
terms and conditions it can reasonably be interpreted in more than one
way.” Clayton v. Poggendorf, 237 So. 3d 1041, 1047 (Fla. 4th DCA 2018)
(emphasis added).
Clients first argue the court erred by finding the retainer agreement
permitted hourly billing during the first six months of representation.
Clients maintain the language in the retainer agreement providing
“depleted by a $500.00 monthly fee against it” can only mean that the $500
charged monthly during the first six months is the fee for those months—
not an installment payment towards the total fee. In other words,
“monthly fee” can only have one meaning—the fee is a flat rate of $500 per
month. We agree with Clients and hold that the parties’ agreement
unambiguously provided for a flat fee of $500 per month for the first six
months charged against the $3,000 retainer. This interpretation is also
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supported by the following sentence in the agreement: “When the initial
retainer is depleted, an additional retainer may be required, and you will
be billed on an hourly basis for work performed.” (emphasis added). Use
of the word term “[w]hen” indicates a moment in time, meaning Clients
would begin being billed hourly when the initial retainer is depleted. See
Liberty Mut. Ins. Co. v. Wolfson, 299 So. 3d 28, 35 (Fla. 4th DCA 2020)
(under the doctrine of noscitur a sociis, “a word is known by the company
it keeps” and should be interpreted with reference to the other words in
the context that those words appear). Additionally, the agreement does
not explicitly indicate Clients would be billed for hourly work performed
during the first six months nor does it provide that the $500 monthly
payments represent installments. Accordingly, we reverse the portion of
the final judgment awarding Law Firm attorney’s fees for the first six
months of representation.
Turning to the fees billed after the first six months, Clients argue
reversal is required because Law Firm did not present expert testimony to
establish the reasonableness of the fees. We reject this argument. “In the
present case, [Law Firm] sought the previously incurred attorney’s fees as
an element of compensatory damages in [its] breach of contract action
against Client[s]. Accordingly, [Law Firm] was not required to present an
independent expert witness to establish the reasonableness of the fees.”
Rodriguez v. Altomare, 261 So. 3d 590, 592 (Fla. 4th DCA 2018) (“If . . .
a party is seeking to recover previously incurred attorney’s fees as an
element of compensatory damages in a separate breach of contract action,
that party is not required to provide an independent expert witness to
corroborate the reasonableness of the fees.”); see also Universal Beverages
Holdings, Inc. v. Merkin, 902 So. 2d 288, 290 (Fla. 3d DCA 2005) (in the
context of a breach of contract action to recover previously incurred
attorney’s fees, the attorney “was not legally required to provide a detailed
accounting of the services rendered and the number of hours expended.
Instead, he only needed to show the existence of an oral contract and its
terms.”). Accordingly, we affirm in all respects the portion of the final
judgment awarding Law Firm the attorney’s fees which it incurred after
the first six months of representation.
Affirmed in part, reversed in part, and remanded.
MAY and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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