Circuit Court Order: Attorney charging liens not subject to 30 day limitation for motions to tax costs and fees

Attorney’s fees — Charging liens — Rule 1.525, which
requires party seeking judgment taxing costs or attorney’s fees to serve motion
no later than 30 days after filing of judgment, does not apply to attorney’s
motion to enforce previously perfected charging lien

MARK J. FELDMAN, P.A., Appellant, vs. FLORIDA WELLNESS & REHABILITATION
CENTER INC., A/A/O JAVIER FERNANDEZ, Appellee. Circuit Court, 11th Judicial
Circuit Court (Appellate) in and for Miami-Dade County. Case No. 12-382 AP. L.T.
Case No. 09-3182. August 23, 2013. On appeal from the County Court for Miami
Dade County, Florida, Lourdes Simon, Judge. Counsel: Mark J. Feldman, for
Appellant. Ricardo Banciella, for Appellee.

(Before, THOMAS; HANZMAN and REBULL, JJ.)

(HANZMAN, J.)

I. INTRODUCTION

Fla. R. Civ. P. 1.525 provides that:

Id. The Rule, first adopted by the Supreme Court in 2001, establishes
“a bright-line time requirement for motions for costs and attorney fees. . .”
Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 600 (Fla. 2006)
[31 Fla. L. Weekly S281a]. Prior to its adoption, a prevailing party seeking
attorney’s fees and costs was obligated to file a motion within a “reasonable
time” after entry of a judgment, Amerus Life Ins. Co. v. Lait, 2 So. 3d
203, 205 (Fla. 2009) [34 Fla. L. Weekly S49a], an inherently imprecise metric.
The thirty (30) day repose period of Rule 1.525 was thus established “to
accomplish two goals: first, to cure the “evil” of uncertainty created by tardy
motions for fees and costs, see Norris, 907 So.2d at 1218; and second, to
eliminate the prejudice that tardy motions cause to both the opposing party and
the trial court.” Barco v. Sch. Bd. of Pinellas County, 975 So. 2d 1116,
1123 (Fla. 2008) [33 Fla. L. Weekly S87b], citing Norris v. Treadwell,
907 So. 2d 1217 (Fla. 1st DCA 2005) [30 Fla. L. Weekly D1579a].

The narrow — and only — issue presented by this appeal is whether the trial
court erred in concluding that Appellant’s motion to enforce a previously
perfected charging lien against Appellee — its former client — was barred
because it was admittedly filed well outside Rule 1.525’s thirty (30) day
deadline. In other words, we address the purely legal question of whether the
Rule applies to an attorney’s motion to enforce a charging lien; an issue we
review de novo. Smith v. Smith, 902 So. 2d 859, 861 (Fla. 1st DCA 2005)
[30 Fla. L. Weekly D1188g](the standard of review regarding the trial court’s
construction of the rules [of procedure] is de novo”); Gosselin v.
Gosselin, 869 So. 2d 667, 668 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D808c]
(“Because the trial court’s determination that the Wife’s amended motion for
attorney’s fees was barred by Florida Rule of Civil Procedure 1.525 is a legal
determination, we review it de novo”).

II. FACTS AND PROCEDURAL HISTORY

Appellant, Mark J. Feldman, P.A., was retained by Appellee, Florida Wellness
& Rehabilitation Center, to file suit against United Automobile Insurance
Company based upon an alleged failure to pay medical bills covered by PIP
policies. The suit Appellant initiated (this action) was allegedly one of
“thousands” brought by Appellee against this carrier. United, in turn, filed an
action against Appellee in the United States District Court for the Southern
District of Florida alleging, among other things, federal RICO claims. Appellant
alleges that Appellee reached a “global settlement” of the federal litigation
which resulted in its receipt of a five million dollar ($5,000,000.00) payment
from United.

On March 9th, 2010 Appellant filed and served a notice of charging and
retaining lien. There is no dispute that this lien was perfected. See
Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom,
428 So. 2d 1383, 1385 (Fla. 1983) (“There are no requirements for perfecting
a charging lien beyond timely notice.”). Eight (8) days later Appellee, through
its new counsel, voluntarily dismissed the underlying litigation; presumably
pursuant to the terms of the “global settlement” reached with United in the
federal action.

On June 25, 2012, more than two (2) years after the filing of the voluntary
dismissal, Appellant sought to enforce its lien; a request Appellee maintained
was barred by Rule 1.525. Appellee also asserted that there were no settlement
funds realized through the litigation upon which a lien could attach. See
Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.
2d 88, 91-92 (Fla. 3d DCA 1987) (“[I]t is not enough, however, to support the
imposition of a charging lien that an attorney has provided his services; the
services must, in addition, produce a positive judgment or settlement for the
client, since the lien will attach only to the tangible fruits of the
services”). Agreeing with what it described as Appellees “procedural” argument,
the trial court found the charging lien claim time barred, and therefore did not
reach the merits. We reverse.

III. ANALYSIS

“[I]t is well settled that the Florida Rules of Civil Procedure are construed
in accordance with the principles of statutory construction,” Barco, supra
at 1121, and that “[w]hen the language of the statute is clear and
unambiguous and conveys a clear and definite meaning, there is no occasion for
resorting to the rules of statutory interpretation and construction; the statute
must be given its plain and obvious meaning.” Holly v. Auld, 450 So. 2d
217, 219 (Fla. 1984).

Rule 1.525 requires that a “party” seeking to “tax” fees and/or costs serve a
motion no later than thirty (30) days after the entry of a judgment or notice
“which concludes the action as to that party.” Id. An attorney
representing a client in a litigation matter is not a “party” — and an attorney
seeking to enforce a charging lien is not seeking to “tax” attorney’s fees and
costs based upon a right conferred by a Judgment “which concludes the action” in
his or her favor — i.e., prevailing party status. Thus, an attorney’s effort to
enforce a previously perfected charging lien clearly is not encompassed by the
“plain and obvious” meaning of the Rule. Holly, supra at 219.

Furthermore, and if this were not enough, the purpose of the Rule, and the
“evil” it seeks to prevent, are not implicated in such an action. Obligating a
“prevailing party” to file its motion for attorney’s fees and costs within
thirty (30) days of “prevailing” is reasonable — and furthers the policy of
concluding litigation — because a “prevailing party” is always on notice of
when its claimed entitlement vests; in other words, a “prevailing party” is on
notice of the Judgment which triggers its alleged right to seek fees and costs.
Thus, requiring a “prevailing party” to assert its claim within thirty (30) days
eliminates “tardy motions” and the unfair prejudice “tardy motions” cause to
both the opposing party and trial court. Barco, supra at 1123.

Unlike a “party” receiving a favorable Judgment, an attorney who has
perfected a charging lien is typically no longer involved in the litigation, and
not directly involved in its conclusion — either by settlement or Judgment.
That is precisely why the “lien” is filed: it imposes a burden of disclosure —
and protection — upon the parties. See Zaldivar v. Okeelanta Corp., 877
So. 2d 927, 930 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D1714b] (given notice of
the charging lien both parties had “an ‘affirmative obligation to inform
[counsel] of the settlement stipulation”). In some instances parties will
disregard those obligations — intentionally or unintentionally — and the
attorney will not “discover” the outcome until long after the case is concluded.
To cut off a lien claim through application of Rule 1.525’s thirty (30) day
repose period would therefore reward parties for their failure to provide the
notification required by law. And in a case involving a perfected charging lien,
any “prejudice” suffered by a “tardy” motion is self-imposed. If the parties
want the lien claim to be promptly adjudicated, all they have to do is timely
disclose the terms of any settlement (or result) to the lienor. If they
disregard their obligation to do so, and as a consequence adjudication of the
lien claim is delayed, they have no one to blame but themselves.1

The trial court’s order dismissing Appellant’s equitable lien claim as
untimely pursuant to Fla. R. Civ. P. 1.525 is reversed and this cause is
remanded for further proceedings consistent with this opinion.

__________________

1The fact that a claim of lien is not
within the ambit of Rule 1.525 does not mean that an attorney, with notice of
her rights, may sit by idly. A charging lien is an equitable right subject to
the equitable defense of laches. Zaldivar, supra at 931.