Agudo, Pineiro & Kates, P.A., v. Harbert Const. Co.

• Decision Date: 17 September 1985
• Docket Number: No. 84-137,84-137
• Citation: 10 Fla. L. Weekly 2183,476 So.2d 1311
• Court: Florida District Court of Appeals
• Parties: 10 Fla. L. Weekly 2183 AGUDO, PINEIRO & KATES, P.A., a Florida professional corporation and Calvin F. David, Appellants, v. HARBERT CONSTRUCTION COMPANY, an Alabama corporation, and Harbert Corporation, an Alabama corporation, Appellees.

Page 1311

476 So.2d 1311

10 Fla. L. Weekly 2183

AGUDO, PINEIRO & KATES, P.A., a Florida professional corporation and Calvin F. David, Appellants, v. HARBERT CONSTRUCTION COMPANY, an Alabama corporation, and Harbert Corporation, an Alabama corporation, Appellees.

No. 84-137.

District Court of Appeal of Florida,

Third District.

Sept. 17, 1985.

Rehearing Denied Nov. 4, 1985.

Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellants.

Steel, Hector & Davis and Donald M. Middlebrooks and Lewis F. Murphy, Miami, for appellees.

Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.

HENDRY, Judge.

This is an appeal by plaintiffs below, the law firm of Agudo, Pineiro & Kates, P.A. (Agudo) and attorney Calvin F. David, from an adverse final summary judgment terminating their claim against appellees Harbert Construction Company and Harbert Corporation (Harbert) for tortious interference with an attorney-client relationship. For reasons more fully developed below, we reverse and remand for further proceedings.

I.

This case arose as the result of an underlying action filed by Salvador Reyes-Vaca (Reyes) against Harbert. Reyes, an uneducated Ecuadorian laborer, was employed by Harbert Distral de Panama, a wholly owned subsidiary of Harbert, in the construction of an oil pipeline for Texaco in Ecuador. In 1980 Reyes was injured during the course of his employment by a high pressure pneumatic eruption from a valve in the pipeline. Reyes sustained a compound leg fracture and was admitted into an Ecuadorian hospital. During his recovery there, Reyes developed a severe infection in his injured leg which could not be treated in Ecuador. Harbert flew Reyes to an American hospital where he received medical attention and care for over a year. Harbert assumed the legal liability for all of Reyes' medical expenses and paid Reyes' salary to his mother in Ecuador.

Subsequently, Reyes was placed in a convalescent home in Miami to undergo physical therapy while his leg healed. Harbert retained a Spanish-speaking occupational therapist to ensure Reyes' arrival at the various doctors' and therapy appointments and to monitor his progress. While at the home, Reyes was befriended by an employee of the home, Martha Mason. Ms. Mason suggested to Reyes in early August, 1981 that Harbert was not treating him properly and that his bills were not being paid. She stated that she had a friend who was a lawyer, who would help him. The significance of this conversation will be discussed infra. Mason then called her former attorney, Antonio Pineiro, Jr., and told him that Reyes might be calling the law firm. Reyes called Pineiro and Pineiro drove to the convalescent home and met Reyes that day. They talked for two hours and agreed to talk again the next day. The next day, Pineiro's partner, Marcelo Agudo, took Reyes to the offices of appellant Calvin David, another Miami attorney, wherein an extensive interview was held. David concluded that Reyes had a substantial claim. David told Reyes that the Agudo firm would be handling that portion of Reyes' legal representation involving interpretation into the Spanish language and any matters to be conducted in Ecuador, and David would be primarily responsible for the lawsuit. In addition, David told Reyes that Alabama counsel would be necessary as Harbert Construction Company's headquarters were located in that state. After the interview Agudo drove Reyes to an appointment and returned to his office to prepare the fee agreement. Agudo took the 50% (trial/settlement) contingent fee agreement to the convalescent home, where Reyes signed it.

Thereafter, David retained Alabama counsel and a complaint was filed on August 10, 1981 in Alabama against Harbert. On August 21, 1981 Harbert received the complaint and gave instructions that same day to hold payment on Reyes' medical bills Harbert asserts that, thereafter, Reyes wrote a letter to John Harbert III, Chairman of the Board of Harbert Corporation, explaining his problems, that he had changed his mind about having attorneys, that he felt he had made a mistake and that he desired to have his leg healed, to return to Ecuador and his family and to continue to work for Harbert. Reyes asked Solomon Lepp, Harbert's officer in charge of Latin American operations, to meet with him in Miami. Agudo asserts that the letter was never mailed; that Harbert contacted Reyes and set up the meeting. In any event, Lepp, accompanied by Harbert's in-house counsel, met with Reyes at the home on October 30, 1981. The in-house counsel stayed outside while Lepp met with Reyes alone, although Lepp did confer with Harbert's lawyers twice during the course of the meeting. Just prior to the meeting, Reyes asked his English tutor, Oscar Solis, to draft a statement setting forth his concerns, specifically, that the treatment of his leg not be interrupted, that the company not retaliate against him, and that the company guarantee him a job, upon his return to Ecuador, which would take into consideration the present physical condition of his leg. The letter also stated Reyes' intention to drop the lawsuit. At the close of the meeting the letter was given to Lepp, who had it typed, then Reyes executed the document and it was notarized. Reyes next notified Agudo that he was dropping the lawsuit and dismissing the law firm. Pineiro and Agudo visited Reyes at the home and learned of the previous meeting between Lepp and Reyes. ¹ The attorneys also examined the notarized document. In December, 1981, following a final operation on his leg, Reyes returned to Ecuador where he is presently working in a warehouse for Harbert.

until Harbert could reach an agreement with Reyes' attorneys regarding the admissibility into evidence in a subsequent trial of any past and future medical payments. The negotiations between the attorneys occurred several months later and were never resolved. Meanwhile, the convalescent home communicated to Reyes that due to his medical bills not being paid, he would have to leave. Obviously distraught, Reyes called Pineiro. Pineiro called the home, confirmed the threat and elicited an agreement from the administration of the home to extend Reyes' stay for one month.

Agudo thereafter filed this lawsuit against Harbert for tortious interference with an attorney-client relationship, alleging that Harbert wilfully interfered with the Reyes-Agudo business relationship, and through the use of threats, promises, economic coercion and intimidation induced Reyes to abandon his contractual relationship with the law firm and to release all claims against Harbert for an amount of money far below the amount which reasonably could have been expected to have been recovered. Harbert moved for summary judgment contending that the undisputed facts showed (1) that Reyes acted voluntarily, (2) that the settlement did not constitute tortious interference with Agudo's contract because of the parties' privilege to settle and Harbert's lack of the requisite intent to interfere in order to gain a direct advantage over the Agudo law firm, and (3) that the fee arrangement was unconscionable. The trial court agreed with Harbert and entered the contested final summary judgment.

At oral argument, this court raised an issue on its own motion: the relevance of Thomas v. Ratiner, 462 So.2d 1157 (Fla. 3d DCA 1984) to this case. The issue presented in both cases is the applicability of section 877.02, Florida Statutes (1981) to the respective fact patterns. This statute sets criminal penalties for the communication, by an employee of a hospital, with an attorney, for the purpose of aiding or assisting that attorney in the solicitation of legal business. In Thomas v. Ratiner, we held the fee contract obtained by the doctor/attorney in derogation of section 877.02

                to be void ab initio.   In the case at bar, the issue of the statute's applicability was not raised before the trial court.  While we recognize that there are instances where errors are so glaring or fundamental that an appellate court will adjudicate them on its own initiative, Polyglycoat Corp. v. Hirsch Distributors, Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983), rev. dismissed, 451 So.2d 848 (Fla.1984), we have decided that there are too many serious constitutional, procedural and factual questions presented in this case to allow us to proceed on the record before us.  Therefore, we are remanding this action to the trial court for a full resolution of the issues discussed herein
                

II.

The statute in question, section 877.02, states in relevant part:

(2) It shall be unlawful for any person in the employ of or in any capacity attached to any hospital, sanitarium, police department, wrecker service or garage, prison or court, or for a person authorized to furnish bail bonds, investigators, photographers, insurance or public adjusters, to communicate directly or indirectly with any attorney or person acting on said attorney's behalf for the purpose of aiding, assisting or abetting such attorney in the solicitation of legal business or the procurement through solicitation of a retainer, written or oral, or any agreement authorizing the attorney to perform or render legal services.

(3) Any person violating any provision of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

We note first that there are questions concerning the applicability of the statute in this case. The difficulty arises because the statute has been construed only occasionally. Carricarte v. State, 384 So.2d 1261 (Fla.), cert. denied, 449 U.S. 874, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980); Pace v. State, 368 So.2d 340 (Fla.1979); State ex rel. Farber v. Williams, 183 So.2d 537 (Fla.), cert. denied, 385 U.S. 845, 87 S.Ct. 42, 17 L.Ed.2d 76 (1966); Thomas v. Ratiner, 462 So.2d 1157 (Fla. 3d DCA 1984). By its own terms, the statute seems to require some form of relationship...