28 Fla. L. Weekly Supp. 194b
Online Reference: FLWSUPP 2803FELD
Insurance — Personal injury protection — Attorney’s fees — Appeal of trial court’s determination that predecessor attorney was not entitled to attorney’s fee and costs for representation of insured in PIP action after successor attorney filed voluntary notice of dismissal providing that each party would bear own attorney’s fees and costs — Where uncontroverted evidence shows that predecessor attorney was involuntarily discharged and his lien for fees and costs was timely filed and perfected, thus surviving notice of voluntary withdrawal and lack of occurrence of contingency specified in retainer agreement, order denying entitlement to fees and costs is reversed
MARK J. FELDMAN, P.A., Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2018-202-AP-01. L.T. Case No. 2008-16789-CC-25. May 4, 2020. An Appeal from the County Court in and for Miami-Dade County, Hon. Patricia Marino-Pedraza, County Court Judge. Counsel: Mark J. Feldman, Mark Feldman P.A., for Appellant. Michael J. Niemand, United Automobile Insurance Company, for Appellee.
(Before TRAWICK, WALSH and REBULL, JJ.)
(TRAWICK, J.) Appellant Mark J. Feldman (Feldman) contests the determination of the trial court that he was not entitled to attorney’s fees. Upon our review of the record, we agree that the trial court was incorrect in its findings regarding Feldman’s entitlement to fees. As a result, we must reverse the decision below.
Feldman was retained pursuant to a contingency fee contract by Lety Castillo to represent her in an insurance claim dispute with Appellee United Automobile Insurance Company (United). Castillo alleged that United failed to pay certain medical bills she incurred directly related to an automobile accident. On December 1, 2008, Feldman filed a complaint on behalf of Castillo alleging breach of contract for the denial of personal insurance protection (PIP) benefits. Within the complaint was a claim for attorney’s fees pursuant to Florida Statutes §627.428.
On November 27, 2010, a stipulation for substitution of counsel was executed by Feldman, Castillo and Castillo’s new attorney, Carlos Cruances. No reason was given in the stipulation for the change of counsel. This stipulation was accepted by the trial court on December 14, 2010. On December 20, 2010, a notice of charging and retaining liens was filed by Feldman. On June 17, 2016, a notice of voluntary dismissal was filed by a successor counsel on behalf of Castillo. The notice indicated that each party would bear its own attorney’s fees and costs.
Feldman subsequently filed a supplemental complaint to enforce the charging and retaining liens against both United and Castillo. During an evidentiary hearing on Feldman’s entitlement to fees and costs, the court heard testimony from Feldman who stated that he was wrongfully discharged without cause by Castillo. In response, United attempted to introduce an affidavit purportedly signed by Castillo. The Court sustained Feldman’s objections to the affidavit as containing attorney-client privileged information and that the affidavit was hearsay. While United also produced the testimony of a successor attorney to Cruances, Jorge Romani, Romani provided no information as to the circumstances surrounding Feldman’s discharge. No other evidence was produced to support United’s contention that Feldman had voluntarily withdrawn from the case.
The trial court entered an order denying Feldman’s motion for entitlement to fees and costs. The court specifically found that United had not acted in bad faith in resolving Feldman’s claim for fees; that Feldman had not been discharged but had voluntarily withdrawn; that Feldman was not entitled to attorney’s fees; and that Feldman’s recourse for fees was to make a claim against Castillo.
This Court reviews the trial court’s order denial of the award of attorney’s fees under an abuse of discretion standard. Quigley v. Culbertson, 279 So.3d 1260, 1261 (Fla. 3d DCA 2019) [44 Fla. L. Weekly D2341a]. Such a decision must be based upon competent substantial evidence. Id.; Diwakar v. Montecito Palm Beach Condominium Ass’n. Inc., 143 So.3d 958, 962 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1372b].
In reviewing the trial court’s order, we must address three issues: first, whether the trial court’s conclusion that Feldman voluntarily withdrew from his representation of Castillo was supported by competent admissible evidence; second whether Feldman’s fee claim survived the notice of voluntary dismissal filed by Castillo in which it was stipulated that the parties would bear their own fees and costs; and third is what effect the contingency fee agreement between Feldman and Castillo has upon Feldman’s attorney’s fee claim.
The Voluntariness of Feldman’s Withdrawal
The trial court’s conclusion that Feldman withdrew from representation was unsupported by any competent evidence. The only evidence supporting the trial court’s conclusion that Feldman’s withdrawal was voluntary was the affidavit of Castillo. However, this affidavit was properly excluded by the trial court. See Mitchell Brothers, Inc. v. Westfield Insurance Company, et. al., 24 So.3d 1269 (Fla. 1st DCA 2009) [35 Fla. L. Weekly D107b] (An affidavit is hearsay and cannot support an award of attorney’s fees); Roggemann v. Boston Safe Deposit and Trust Co., 670 So.2d 1073 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D706a] (“a trial court cannot rely on affidavits at the hearing to assess attorney’s fees, since they are hearsay.”). Without the affidavit, there is no competent evidence in the record to rebut the testimony of Feldman that he was wrongfully discharged. Thus, the trial court’s finding of a voluntary withdrawal cannot be sustained.
Did Feldman’s Alleged Entitlement to Fees Survive the Stipulation That the Parties Would Bear Their Own Fees and Costs?
An attorney’s entitlement to fees in PIP cases is governed by Florida Statute §627.428(1) which provides:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
Upon his discharge by Castillo, and prior to the settlement in this case by successor counsel, Feldman filed a notice of charging lien for fees and costs. Although not citing §627.428(1) in the notice, his entitlement to fees stems from this provision. The notice preserved his right to seek fees and costs from United and Castillo if United paid “any sums to resolve any of plaintiff’s claims.” The notice of voluntary dismissal, filed over five years later, did not extinguish Feldman’s right to enforce the lien. See Hannah v. Elder, 545 So.2d 503, 504 (Fla. 4th DCA 1989) (filing of notice of lien in pending case perfected the claim and survived the notice of voluntary dismissal), citing Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383 (Fla. 1983). See also Gaebe, Murphy, Mullen & Antonelli v. Bradt, 704 So.2d 618, 619 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D2506e].
Effect of Contingency Fee Agreement on Feldman’s Claim
Feldman’s retainer agreement with Castillo was on a contingency basis. The agreement states in pertinent part:
If and only if I prevail and the Court awards an attorney fee pursuant to any applicable Florida Statute, Florida law, or contract, shall my attorney be entitled to a fee. . . .
The lawyers from Mark J. Feldman, P.A., have agreed to represent me on a pure contingency basis and it is agreed that they will only recover a fee if the case is successful and a fee is awarded by the Court.
As discussed above, the only admissible evidence before the trial court supports the conclusion that Feldman was involuntarily discharged. As a result, Feldman may be entitled to a fee for his services against both United and Castillo even though the contingency specified in the retainer agreement had not occurred at the time of his withdrawal. See Faro v. Romani, 641 So.2d 69, 71 (Fla. 1994) (An attorney withdrawing prior to the contingency of an award may be entitled to a fee if the attorney’s continued representation of the client would violate an ethical rule of the Florida Bar.1 2
The uncontroverted evidence in the record establishes that Feldman was involuntarily discharged. His lien for fees and costs was timely filed and perfected, thus surviving the notice of voluntary dismissal and the lack of the occurrence of the contingency specified in the retainer agreement. As a result, the trial court’s order denying Feldman’s entitlement to attorney’s fees must be REVERSED. This matter is remanded for the trial court to determine reasonable attorney’s fees. See Mitchell Brothers, Inc. v. Westfield Insurance Company, et. al., 24 So.3d 1269, 1270 (Fla. 1st DCA 2009) [35 Fla. L. Weekly D107b]. (WALSH and REBULL, JJ., concur.)
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1Rule 4-1.16(a)(3) of the Rules Regulating the Florida Bar states:
Except as stated in subdivision (C), a lawyer shall not represent a client, or when representation has commenced, shall withdraw from the representation of a client if:
(3) the lawyer is discharged.
2Faro also supports the conclusion that the Feldman would be entitled to a fee award even though the award was pursuant to a settlement and not an award by the court.
