Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

April 8, 2016 by admin

Attorney’s fees — Contingency fee agreement — Denial of petition to approve contingency fee agreement providing for payment of fee equaling 40% of total settlement award from petitioner’s negligence claim, rather than 33-1/3% set by Bar rule

41 Fla. L. Weekly D830aTop of Form

Attorney’s
fees — Contingency fee agreement — Under facts of case, circuit court did not
depart from essential requirements of law resulting in miscarriage of justice
when it denied petition to approve contingency fee agreement providing for
payment of fee equaling 40% of total settlement award from petitioner’s
negligence claim, rather than 33-1/3% set by Bar rule

MARGARET ELLEN MAHANY, as personal representative of the
Estate of William Edmiston, deceased, Petitioner, v. WRIGHT’S HEALTHCARE &
REHABILITATION CENTER, Respondent. 2nd District. Case No. 2D15-1553. Opinion
filed April 1, 2016. Appeal from the Circuit Court for Pinellas County; Walter
L. Schafer, Jr., Judge. Counsel: Celene H. Humphries and Sarah C. Pellenbarg of
Brannock & Humphries, Tampa, and Scott P. Distasio of Distasio Law Firm,
P.A., Tampa, for Petitioner. No appearance on behalf of Respondent.

(SLEET, Judge.) Margaret Ellen Mahany, as personal
representative of the Estate of William Edmiston, seeks certiorari review of
the trial court’s order denying her petition for approval of an attorney fee
contract, which would award her attorney 40% of the total settlement award from
her negligence claim against Wright’s Healthcare and Rehabilitation Center
rather than the standard 33 1/3% provided for by rule 4-1.5(4)(B)(i) of the
Rules Regulating the Florida Bar. We deny the petition.

Mahany filed her complaint against Wright’s on February 18,
2015, apparently after having already reached a settlement with Wright’s. The
limited appellate record reflects that Wright’s did not retain counsel or
otherwise participate in the circuit court proceedings. On February 20, 2015,
petitioner’s attorney, Scott Distasio, sent a letter to the trial court
explaining that the parties settled presuit and attaching a petition for
approval of the attorney fee contract signed by Mahany on March 24, 2014, and
by Attorney Distasio on February 17, 2015. The fee contract provided “for a
straight 40% through contingency fee to Distasio Law Firm.” In her petition,
Mahany waived any right or opportunity to be heard by the trial court on the
petition. Without holding a hearing, the trial court denied the petition.
Mahany filed a motion for reconsideration through counsel and attached an
affidavit, which was signed after the initial petition was denied, stating that
she understood that she was waiving her right to retain counsel at a rate
consistent with rule 4-1.5 but that she would not be able to obtain counsel of
her choice without this waiver. The circuit court denied the motion for
reconsideration, and this appeal followed.

Mahany, who remains represented by Attorney Distasio for this
proceeding, initially filed a notice of appeal from a final order. This court
issued an order to show cause as to why this matter should not be dismissed as
from a nonfinal, nonappealable order, and Mahany responded that this court has
jurisdiction pursuant to Florida Rule of Appellate Procedure 9.110(k). Because
it does not meet the standard for a partial final judgment appealable under
rule 9.110(k), we converted the appeal to a petition for writ of certiorari by
order dated May 7, 2015.

In Szewczyk v. Bayshore Properties, 456 So. 2d 1294,
1296 (Fla. 2d DCA 1984), this court set forth three criteria that should be
considered when determining whether a partial judgment is final and appealable:
(1) whether the counts could be disposed of independently of each other, (2)
whether one or more parties were removed from the action when the judgment was
entered, and (3) whether the counts could be separately disposed of based on
the same or different facts. See also Fla. Farm Bureau Gen. Ins. Co.
v. Peacock’s Excavating Serv., Inc.
, 40 Fla. L. Weekly D1724, D1725 (Fla.
2d DCA July 24, 2015); Dahly v. Dep’t of Children & Family Servs.,
876 So. 2d 1245, 1248 (Fla. 2d DCA 2004). Each of these criteria presupposes
that the order on appeal resolves some portion of the underlying cause of
action — i.e., some, but not all, of the counts alleged in the complaint —
against a party to the litigation. Applying this test to the order presently on
appeal is problematic because the order relates only to the plaintiff, Mahany,
and her counsel; it does not resolve any of the counts of the complaint against
either party to the litigation, and it does not relate to the facts of the
underlying litigation. The defendant, Wright’s, did not file a response in this
appellate proceeding, explaining that it had no interest in the outcome of the
appeal. Thus, the order denying the petition to accept the attorney fee
agreement is better reviewed as a petition for writ of certiorari because it
alleges a harm that cannot be remedied in a plenary appeal and is not a partial
final judgment as to the underlying cause of action in this case. But see
In re Buggs ex rel. Rengifo, 122 So. 3d 519, 520 (Fla. 1st DCA 2013)
(considering a similar order involving the Distasio Law Firm as a direct
appeal, not as a petition for writ of certiorari).

“We may grant a petition for certiorari ‘only when the
petitioner establishes (1) a departure from the essential requirements of the
law, (2) resulting in material injury for the remainder of the trial (3) that cannot
be corrected on postjudgment appeal.’ ” Capital One, N.A. v. Forbes, 34
So. 3d 209, 212 (Fla. 2d DCA 2010) (quoting DeLoach v. Aird, 989 So. 2d
652, 654 (Fla. 2d DCA 2007)). Prongs two and three are determinative of this
court’s jurisdiction. Id. Because the effect of the order on appeal is
to deny the petitioner counsel of her choice, we conclude that the
jurisdictional prongs of the certiorari standard have been met. See Akrey
v. Kindred Nursing Ctrs. E., LLC
, 837 So. 2d 1142, 1144 (Fla. 2d DCA 2003)
(explaining that when the effect of an order “is for a party to be denied
counsel of its choice, a material injury without appellate remedy” results).

Mahany contends that the circuit court departed from the
essential requirements of law when it failed to apply the mandatory provision
of rule 4-1.5, which requires the court to approve a fee agreement when the
client shows that she understands her rights and the terms of the agreement.1 “A failure to observe ‘the
essential requirements of law’ has been held synonymous with a failure to apply
‘the correct law.’ ” Hous. Auth. v. Burton, 874 So. 2d 6, 8 (Fla. 2d DCA
2004) (quoting Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530
(Fla. 1995)). Unlike the application of incorrect law, “a misapplication of the
correct law or an erroneous interpretation of a law does not rise to the
necessary level,” i.e., “a violation of a clearly established principle of law
resulting in a miscarriage of justice.” Fassy v. Crowley, 884 So. 2d
359, 364 (Fla. 2d DCA 2004) (citing Ivey v. Allstate Ins. Co., 774 So.
2d 679, 682-83 (Fla. 2000)); see also Burton, 874 So. 2d at 9.
There is no indication in this record that the circuit court failed to apply
rule 4-1.5 to the proceedings below. The circuit court’s failure to approve the
fee agreement, irrespective of whether we agree with Mr. Distasio that the
language of rule 4-1.5(f)(4)(B)(ii) mandates approval when the client swears by
affidavit that she is aware of her rights and the terms of the agreement, does
not amount to a departure from the essential requirements of law on these
facts. See Barker v. Barker, 909 So. 2d 333, 337 (Fla. 2d DCA
2005) (“A departure from the essential requirements of the law necessary for
the issuance of a writ of certiorari is something more than a simple legal
error. There must be a violation of a clearly established principle of law
resulting in a miscarriage of justice.” (citing Combs v. State, 436 So.
2d 93, 95-96 (Fla. 1983))).

Finally, we emphasize that the rule requires the trial court
to determine whether the client understands her right to have the fee
limitations in rule 4-1.5(f)(4)(B) applied to her case and that she understands
and approves the terms of the proposed contract. We are not persuaded that such
a determination could be made without an evidentiary hearing. A waiver of this
right in a sworn petition for approval of an attorney fee contract deprives the
trial court of the ability to assess the client’s competence, understanding,
and willingness to waive such a right. The better practice is to present the
client before the court to allow the court to assess her understanding of her
rights and to confirm that she has made a knowing and intelligent waiver of her
rights under the rule.

Petition for writ of certiorari denied. (LaROSE and SALARIO,
JJ., Concur.)

__________________

1Rule 4-1.5(f)(4)(B)(ii) states:

If
any client is unable to obtain an attorney of the client’s choice because of
the limitations set forth in subdivision (f)(4)(B)(i), the client may petition
the court in which the matter would be filed, if litigation is necessary, or if
such court will not accept jurisdiction for the fee division, the circuit court
wherein the cause of action arose, for approval of any fee contract between the
client and an attorney of the client’s choosing. Such authorization shall be
given
if the court determines the client has a complete understanding of
the client’s rights and the terms of the proposed contract.

(Emphasis added).

Filed Under: Articles

Primary Sidebar

Blog Archives

  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982