27 Fla. L. Weekly Supp. 785a

Online Reference: FLWSUPP 2709GOMEInsurance — Personal injury protection — Attorney’s fees — Charging lien — Medical provider appeals final judgment determining that discharged attorney that formerly represented provider in action for PIP benefits that eventually ended in settlement was entitled to attorney’s fees beyond amount of global settlement — No merit to argument that attorney has statutory right, under section 627.428, to proceed against provider for attorney’s fees rather than having fees capped by terms of settlement — Statute is inapplicable to claim for fees pursuant to charging lien — Remand for evidentiary hearing to determine apportionment of settlement between discharged attorney and successor attorney — Trial court further erred by awarding expert witness fee and other costs incurred in prosecuting charging lien

FLORIDA WELLNESS AND REHABILITATION CENTER, INC., a/a/o Maria Gomez, Appellant, v. REDLAND INSURANCE CO., n/k/a Praetorian Insurance Co., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 18-054 AP. L.T. Case No. 09-6358 CC 26 (4). November 13, 2019. An Appeal from the County Court for Miami-Dade County, King, Judge. Counsel: Todd Landau, Landau & Associates, Inc., for Appellant. Mark J. Feldman P.A., pro se for Appellee.

(Before FERNANDEZ, SIMON, and BLUMSTEIN, JJ.)

(BLUMSTEIN, J.) This is an appeal from a perfected charging lien for attorney’s fees and costs.¹ Appellee Mark J. Feldman P.A. (Mark J. Feldman P.A.) legally represented Appellant Florida Wellness & Rehabilitation Center, Inc. (Florida Wellness), a former client² (the assignee of Maria Gomez) in a breach of contract action against Redland Insurance Co. n/k/a Praetorian Insurance Co. (Redland) for unpaid personal injury protection (PIP) benefits under section 627.736, Florida Statutes. On February 5, 2015, Mark J. Feldman P.A. filed a notice of charging lien in the PIP action against Florida Wellness and Redland. Subsequently, Florida Wellness and Redland entered into a settlement agreement for $15,000.00 as to the PIP action.³

In Florida, attorney’s fees are generally not awarded unless provided by contract or statute. State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 832 (Fla. 1993). A charging lien differs in nature from a claim for attorney’s fees. Rosenthal, Levy & Simon, P.A. v. Scott, 17 So. 3d 872, 874 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D1875e]. A charging lien is an equitable right to have costs and attorney’s fees due an attorney for services in a suit secured by her in a judgment or recovery of a suit. Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1384 (Fla. 1983). The establishment of a lien declares the right of the attorney to participate in the judgment or recovery. Zaldivar v. Okeelanta Corp., 877 So. 2d 927, 930 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D1714b]. Mark J. Feldman P.A. admits that its lien was equitable in nature.

Mark J. Feldman P.A., the discharged attorney, admitted that it was not the “final attorney in the litigation.” As such, Florida Wellness argues that Mark J. Feldman P.A. was only entitled to the quantum meruit value⁴ of its legal services prior to discharge because of its fee contract and to apportion/equitably distribute the attorney’s fees within the $15,000.00 settlement between it and the successor attorney, Landau & Associates, P.A.

We find that the enforcement/entitlement order of April 27, 2017 erroneously relied on Brown v. Vermont Mutual Insurance Co., 614 So. 2d 574 (Fla. 1st DCA 1993)⁵ and section 627.428, Florida Statutes (2016). The Brown case is inapplicable to this case and the order was erroneous for enforcing/giving entitlement to attorney’s fees under section 627.428, Florida Statutes (2016) to the discharged attorney rather than following the equitable distribution of the global settlement; the concept found in Mark J. Feldman P.A. v. Clarendon National Insurance Co., 24 Fla. Weekly Supp. 594a (Fla. 11th Cir. Ct. Nov. 18, 2016).⁶ We agree that Florida Wellness is a medical provider, not an insurer, and that no judgment exists in this case under section 627.428, Florida Statutes because a settlement exists; therefore, that statute is inapplicable to a charging lien and quantum meruit applies since a charging lien is based in equity. The Clarendon Court stated that a charging lien “is rooted in the common law, not statute” and “since a charging lien attaches to the settlement or judgment, a [charging lien] entitled him to collect his fees and costs from the proceeds of the settlement.” The payment of settlement funds to a newly retained counsel who held the funds in a trust, as is the case here, does not impair a charging lien. Law Office of Michael B. Brehne, P.A. v. Porter Law Firm, LLC, 268 So. 3d 854, 855 (Fla. 5th DCA 2019) [44 Fla. L. Weekly D721a].

Here, the enforcement/entitlement order acknowledged that Clarendon held that a discharged attorney is limited by the settlement proceeds for satisfaction of the charging lien. Absent provisions in a contingency fee agreement limiting the right to settle and absent bad faith, not the case here, a client is free to settle a claim after the discharge of an attorney, and the discharged attorney is entitled only to a percentage of the settlement. Arabia v. Siedlecki, 789 So. 2d 380, 383 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D845a]. As Florida Wellness argues based on the fee contract and Clarendon, we find that the trial court erred by failing to award a pro rata share of attorney’s fees to Mark J. Feldman P.A. through February 19, 2015, the date of substitution of counsel, not exceeding the settlement proceeds of $15,000.00. Although a charging lien is based on quantum meruit, Mark J. Feldman P.A. argued against equitable distribution as well as any apportionment of the settlement proceeds.

The final order of February 9, 2018 relying on Brown and section 627.428, Florida Statutes, both inapplicable in this case, awarded Mark J. Feldman P.A. reasonable attorney’s fees and costs against Florida Wellness of $15,087.50, $325.00 in costs and an expert witness fee for Virginia M. Best, Esq. of $9,750,00. We find that the trial court erred in allowing Mark J. Feldman P.A to collect attorney’s fees beyond the maximum amount of the global settlement amount of $15,000.00, running afoul of Clarendon. Based on this extensive record, we find that a remand is necessary to the trial court for an evidentiary hearing to determine the apportionment of attorney’s fees between Florida Wellness’ attorneys. Percentages of the $15,000.00 global settlement must be allotted between Mark J. Feldman P.A. and Landau & Associates, P.A.⁷

We agree that the trial court erred by awarding post-settlement an expert witness fee in the final order [as a cost] and other costs to Mark J. Feldman P.A. in prosecuting its charging lien, Florida Wellness relies on Abt v. Metro Motors Ventures, Inc., 252 So. 3d 263, 264 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D1672a]. In Abt, the court held that “[the] expert witness fees accrued in enforcing the charging lien[ ]” must be “eliminate[d] from the order . . . incurred in the prosecution of the charging lien.” Id at 264. In Abt, while affirming the imposition of a charging lien, the Court remanded the case because a discharged attorney is unable to receive cost expenditures or fees for prosecuting a charging lien and to specifically “eliminate from its order the $2,537.50 incurred in the prosecution of the charging lien.” Id.

While Mark J. Feldman P.A. relies on Shlachtman v. Mitrani, 508 So. 2d 494, 495 (Fla. 3d DCA 1987) (an equity court has the discretion to apportion costs), Shlachtman is legally distinguishable and is not in conflict with Abt because Shlachtman stands for the proposition that a court can lower the cost award that was accumulated from the date of discharge, and does not stand for the proposition that a litigant is entitled to costs for the prosecution of a charging lien.

Accordingly, we reverse and remand the order of April 21, 2017 and the Final Order of February 9, 2018 to enter a final order in favor of Mark J. Feldman P.A. as to an amount of attorney’s fees consistent with this opinion. Mark J. Feldman P.A.’s two motions for sanctions and the answer brief’s request for a conditional award under section 57.105, Florida Statutes and Florida Rule of Appellate Procedure 9.410(b) are hereby denied. Florida Wellness’ motion for sanctions and its reply brief request for a conditional award under section 57.105, Florida Statutes are also denied.

REVERSED and REMANDED. (FERNANDEZ and SIMON, JJ. concur.)

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¹A charging lien must be timely filed in order to be perfected. Levine v. Gonzalez, 901 So. 2d 969, 974 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1225b].

²On May 23, 2008, Mark J. Feldman P.A. entered into a contingency fee contract [retainer agreement and bill of rights] [contained in the record] with Florida Wellness which stated that the law firm would be entitled to fees and costs “incurred for the pursuit of my [PIP] claim” . . . “I agree that all fees and costs awarded by the Court are for the prosecution of the claim.”

³An order of August 25, 2017 dismissed Redland with prejudice from the PIP action based on its motion to compel Florida Wellness to comply with the settlement.

⁴An attorney who is discharged without cause after she has performed substantial legal services but before there has been a judgment can recover only the reasonable value of her services rendered which confers a benefit on the client prior to discharge. Rosenberg v. Levin, 409 So. 2d 1016, 1021-22 (Fla. 1982); Feldman v. New Alliance Ins. Co., 722 So. 2d 938, 939 (Fla. 3d DCA 1998) [24 Fla. L. Weekly D105a] (citing Rosenberg v. Levin, 409 So. 2d 1016 (Fla. 1982)); Kay v. Home Depot, Inc., 623 So. 2d 764, 766 (Fla. 5th DCA 1993) (an attorney who is employed under a valid contingency contract and who is discharged without cause before the contingency occurs can recover the value of her services in quantum meruit.) A court cannot award attorney’s fees in excess of the fee agreement between the attorney and client. Lane v. Head, 566 So. 2d 508, 511-12 (Fla. 1990); Indep. Fire Ins. Co. v. Lugassy, 609 So. 2d 51, 53 (Fla. 3d DCA 1992), quashed on other grounds, Lugassy v. Indep. Fire Ins. Co, 636 So. 2d 1332 (Fla. 1994).

⁵The Brown court held that “[t]he courts will protect the attorney against settlements which are designed to defraud or otherwise defeat the payment of his fees, and any settlement made by the client after the attorney’s lien has attached will not be permitted to interfere with the lien.” Id at 580.

⁶In Clarendon, the discharged attorney had a signed PIP contingency fee agreement and was trying to convince the Clarendon Court that the trial court erred by placing a cap on the attorney’s fees that he could collect via the settlement agreement. The Clarendon Court stated that “the attorney is only entitled to recover the reasonable value for the services rendered prior to discharge and [is] limited by the maximum contract fee.” Under section 627.428, Florida Statutes it is the insured, not the attorney who is entitled to an award of attorney fees, and the amount of attorney’s fees and costs is within the power of the insured to negotiate and settle. Section 627.428, Florida Statutes was inapplicable to the charging lien in Clarendon because the motion to enforce the charging lien never raised that particular statute. There was no merit to the argument that a discharged attorney had a statutory right under section 627.428, Florida Statutes to proceed against an insurer for attorney’s fees, rather than having fees capped by the terms of the settlement. There was no abuse of discretion in awarding attorney’s fees and costs from the settlement proceeds based on quantum meruit. The Clarendon case also contained a provision in the settlement designated for attorney’s fees and costs [including that of the discharged attorney] and thereafter an apportionment of fees. There was no fraud on the charging lien itself. The charging lien attached to the settlement proceeds and the discharged attorney was entitled to collect from the settlement and not the insurer.

⁷The lower court, in awarding a pro-rata fee awardable to Mark J. Feldman P.A., should consider the total fee earned by Landau & Associates, P.A., as successor counsel to Florida Wellness, and determine the appropriate pro-rata share from said fee to award to Mark J. Feldman P.A. in satisfaction of its charging lien.