19 Fla. L. Weekly Supp. 50c
Online Reference: FLWSUPP 1901MOREInsurance — Personal injury protection — Attorney’s fees — Application for attorney’s fees and costs filed by attorney who voluntarily withdrew from representation is denied where attorney failed to file notice of charging lien prior to entry of final judgment — Even if notice of charging lien had been filed, attorney who was employed pursuant to contingency fee agreement and voluntarily withdrew from representation prior to occurrence of contingency forfeited all rights to compensation
STAND UP MRI OF MIAMI, INC., a/a/o ANA MORENO, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-002722 COCE 55. October 4, 2011. Honorable Sharon Zeller, Judge. Counsel: Adam J. Shapiro, Office of the General Counsel, for Defendant.
ORDER DENYING WEINSTEIN & ASSOCIATES, P.A.APPLICATION FOR ATTORNEYS’ FEES AND COSTS
THIS CAUSE came before the Court on Weinstein & Associate’s, P.A. (“Weinstein”), application for attorneys’ fees and costs pursuant to Section 627.428, Florida Statutes (§627.428), and Defendant’s objections thereto.
The law firm of Weinstein & Associates, P.A. (“Weinstein”) was the original counsel of record for Plaintiff in this matter. During the course of the litigation, Weinstein hired Ms. Laura Myers-Schader, Esq., an attorney representing the Defendant. Accordingly, Weinstein voluntarily withdrew from this case, and was substituted as counsel of record for Plaintiff by the law firm of Boyar and Freeman, P.A. (“Boyar”).
Following a jury trial in this matter, on August 4, 2010, Final Judgment was entered in favor of Plaintiff. The Final Judgment also granted Plaintiff’s motion for attorneys’ fees and costs. On August 6, 2010, Boyar filed its Motion for Attorneys’ Fees and Costs, which motion only seeks its fees and costs, and not Weinstein’s. Thereafter, on April 7, 2011, Weinstein filed its Notice of Serving Time Sheets seeking attorneys’ fees and costs pursuant to § 627.428. On August 2, 2011, Defendant filed a motion in opposition to Weinstein’s application for fees and costs. Specifically, Defendant argues that Weinstein, who was employed by Plaintiff under a contingency agreement, is precluded from seeking its fees and costs in connection with its representation of Plaintiff because the firm voluntarily withdrew prior to the occurrence of the contingency. In addition, Defendant claims that Weinstein failed to properly file a charging lien.
An attorney seeking fees and costs after withdrawing from representation must file timely notice of a charging lien. Weiland v. Weiland, 814 So. 2d 1252, 1253 (2d DCA 2002) [27 Fla. L. Weekly D998b]. “Notice is timely where the charging lien is filed prior to entry of the final judgment.” Id. (citation omitted). Moreover, “an attorney’s charging lien is untimely and may not be established in proceedings after final judgment has been entered.” Id. (citation omitted). The only recourse an attorney who fails to file timely notice of a charging lien has is to commence a separate action seeking fees. See Worley v. Phillips, 264 So. 2d 42, 43 (2d DCA 1972) (“[T]he attorneys’ failure to file a charging lien in the corporate dissolution suit did not preclude them from instituting a separate action to collect their fees.”).
In the current matter, Weinstein was substituted as counsel of record for Plaintiff on October 23, 2009. There is nothing in the Court’s record to indicate that Weinstein properly filed notice of a charging lien following his withdrawal and prior to the Final Judgment. Therefore, Weinstein’s failure to file a charging lien is fatal to his current application for fees and costs.
Even assuming that Weinstein properly filed notice of a charging lien, the nature of Weinstein’s representation precludes him from recovering its fees and costs in connection with its representation of Plaintiff. Weinstein was employed by Plaintiff pursuant to a contingency agreement, and he voluntarily withdrew from representation prior to the occurrence of the contingency, namely, the Final Judgment in Plaintiff’s favor. It is well settled that “when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation.” Faro v. Romani, 641 So. 2d 69, 71 (Fla. 1994). See also Liberty Mutual Ins. Co. v. Holbrook, 861 So. 2d 1216, 1217 (2d DCA 2003) [28 Fla. L. Weekly D2830a] (denying an attorney’s motion for fees and costs in a personal injury protection matter based on her voluntary withdrawal prior to the occurrence of the contingency). Moreover, the fact that attorneys’ fees and costs in a personal injury protection case are not determined by the amount of recovery, but by § 627.428, is irrelevant. See Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 835 (Fla. 1990) (noting that there is no distinction between a contingency fee arrangement where the fee is determined by the amount of recovery and a contingency fee arrangement where the fee is determined by statute).
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that:
Weinstein’s application for attorneys’ fees and costs be, and the same is, hereby DENIED.
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