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
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.
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.
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.
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.
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).
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).
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))).
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.
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.)
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.
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).