LEIBY TAYLOR STEARNS LINKHORST AND ROBERTS, PA v. Wedgewood Air …

• Decision Date: 07 November 2001
• Docket Number: No. 4D00-4149.,4D00-4149.
• Citation: 801 So.2d 127
• Parties: LEIBY TAYLOR STEARNS LINKHORST AND ROBERTS, P.A., Appellant, v. WEDGEWOOD AIR CONDITIONING, INC., a Florida corporation; D.R.K. of Broward County, Inc., a Florida corporation; and Behar, Gutt & Glazer, P.A., Appellees.
• Court: Florida District Court of Appeals

801 So.2d 127

LEIBY TAYLOR STEARNS LINKHORST AND ROBERTS, P.A., Appellant, v. WEDGEWOOD AIR CONDITIONING, INC., a Florida corporation; D.R.K. of Broward County, Inc., a Florida corporation; and Behar, Gutt & Glazer, P.A., Appellees.

No. 4D00-4149.

District Court of Appeal of Florida, Fourth District.

November 7, 2001.

Rehearing Denied December 21, 2001.

Adam C. Linkhorst of Leiby Taylor Stearns Linkhorst and Roberts, P.A., Fort Lauderdale, for appellant.

Brian S. Behar, David Kovari, and Joseph S. Paglino of Behar, Gutt & Glazer, P.A., Aventura, for Appellee-Behar, Gutt & Glazer, P.A.

DELL, J.

The law firm of Leiby, Taylor, Stearns, Linkhorst & Roberts (Leiby) appeals from a final order denying its motion for rehearing, entered after the trial court denied its claim of a charging lien. We reverse and remand.¹

Wedgewood Air Conditioning, Inc. (Wedgewood) retained the law firm of Behar, Gutt and Glazer (Behar) to represent it in a dispute with Buy Rite Real Estate and D.R.K. of Broward County, Inc. (D.R.K.).² Wedgewood later retained Leiby to serve as co-counsel with Behar. Thereafter, Wedgewood and D.R.K. entered into a mediated settlement agreement wherein D.R.K. agreed to pay Wedgewood $12,000 in two installments of $6,000 each. The agreement also provided that each party would pay its own attorney's fees.

On June 5, 2000, D.R.K. paid the first $6,000 installment into Behar's trust account. On June 26, 2000, Leiby filed a notice of claim of attorney's charging lien:³

LEIBY ... files this Claim of Attorneys' Charging Lien in the sum of $8,528.81, due and owing and unpaid for legal services rendered and costs in the above-styled cause on behalf of WEDGEWOOD AIR, INC. ("WEDGEWOOD"), upon all of WEDGEWOOD'S right, title and interest in any and all real and personal property within the jurisdiction of this Court, pursuant to the Representation Agreement between LAW FIRM [Leiby] and WEDGEWOOD, dated March 13, 2000.

Leiby also stated in its claim of lien that:

The Attorneys' Charging Lien of LAW FIRM [Leiby] relates back to March 13, 2000 and is superior in dignity to any other liens subsequent to March 13, 2000, pursuant to the applicable Florida case law.

On July 5, 2000, D.R.K. paid the second $6,000 installment into Behar's trust account.

Behar filed a memorandum of law opposing enforcement of Leiby's charging lien. In its memorandum Behar asserted a retaining lien in the amount of $8,673.67 and maintained that it had attached to the settlement proceeds in its possession. Leiby filed a memorandum in support of its charging lien.

After an evidentiary hearing, the trial court determined that the attorneys' fees sought by Leiby in its charging lien in the amount of $10,012.50 were reasonable. After Behar and Leiby filed their memorandums of law the trial court denied Leiby's claim of charging lien. The trial court found that Behar's retaining lien "shall take priority over any charging lien filed in this action." The trial court later denied Leiby's motion for rehearing.

Leiby contends that the trial court erred when it denied its claim for a charging lien, and when it determined that Behar's retaining lien was superior to its charging lien. We agree and reverse.

Leiby correctly cites Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88 (Fla. 3d DCA 1987), rev. denied, 525 So.2d 879 (Fla. 1988), in support of its argument that it held a valid charging lien. In Litman, the court defined a charging lien as "an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit." Id. at 91. The record supports Leiby's argument that it satisfied the elements for a valid charging lien. Behar argues that its retaining lien has priority over Leiby's charging lien. In Daniel Mones, P.A. v. Smith, 486 So.2d 559 (Fla.1986), the supreme court discussed an attorney's right to a retaining lien:

In Florida an attorney has a right to a retaining lien upon all of the client's property in the attorney's possession, including money collected for the client.... Unlike a charging lien, a retaining lien covers the balance due for all

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