Attias v. Faroy Realty Co., No. 92-800

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation609 So.2d 105
Parties17 Fla. L. Weekly D2650 Jack P. ATTIAS, Appellant, v. FAROY REALTY COMPANY, a Florida Corporation, Emilio Faroy and Adriana Faroy, a/k/a Adriana Creel, Appellees.
Docket NumberNo. 92-800
Decision Date24 November 1992

Page 105

609 So.2d 105
17 Fla. L. Weekly D2650
Jack P. ATTIAS, Appellant,
v.
FAROY REALTY COMPANY, a Florida Corporation, Emilio Faroy
and Adriana Faroy, a/k/a Adriana Creel, Appellees.
No. 92-800.
District Court of Appeal of Florida,
Third District.
Nov. 24, 1992.

Jack P. Attias, in pro. per.

Harold M. Braxton, Miami, for appellees.

Before HUBBART, COPE and GODERICH, JJ.

Page 106

PER CURIAM.

Jack P. Attias appeals a final order dismissing his action for attorney's fees against defendants Faroy Realty Company, Emilio Faroy and Adriana Faroy. We reverse.

First, defendants' motion to dismiss contended that Attias should have pursued attorney's fees by means of charging liens Attias filed in the litigation in which he represented defendants. This was an affirmative defense which did not appear on the face of plaintiff's complaint. This affirmative defense, therefore, could not be raised by motion to dismiss, for the motion required the court to consider matters outside the four corners of the complaint. See Fla.R.Civ.P. 1.110(d); Henry P. Trawick, Trawick's Florida Practice and Procedure Sec. 10-4, at 174 (1991 ed.).

Second, the charging lien is a security device which allows the attorney to recover fees by imposing a lien on a judgment or settlement obtained by his efforts for his client. See Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88, 90-92 (Fla. 3d DCA 1987), review denied, 525 So.2d 879 (Fla.1988); see also Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla.1983).

Here the plaintiff alleges that there was an agreement to employ him as an attorney on an hourly basis. Plaintiff has elected not to pursue the charging liens. * Instead he has brought suit against defendants for breach of a written contract, quantum meruit, and account stated. We know of no rule which prevents the attorney from abandoning the charging lien and proceeding against the former clients on ordinary contract principles.

The order under review is reversed and the cause is remanded for further proceedings.

---------------

* The record does not reveal the reason for this, but a logical explanation would be that there were no proceeds accruing to the benefit of Attias' clients in the original actions.

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7 practice notes
  • Vause v. Bay Medical Center, No. 94-549
    • United States
    • Court of Appeal of Florida (US)
    • 30 Diciembre 1996
    ...Fla. v. Aetna Casualty and Surety Co., 604 So.2d 850 (Fla. 2d DCA 1992), rev. denied, 613 So.2d 2 (Fla.1993); Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992). Even a relatively straightforward affirmative defense, such as one based upon the statute of limitations, is not a basi......
  • Mettler, Inc. v. Ellen Tracy, Inc., No. 93-02970
    • United States
    • Court of Appeal of Florida (US)
    • 30 Diciembre 1994
    ...on the basis of affirmative defenses unless the affirmative defenses appear on the face of the pleading. Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992); Board of County Com'rs of Polk County, Fla. v. Aetna Cas. & Sur. Co., 604 So.2d 850 (Fla. 2d DCA), review denied, 613 So.2d ......
  • Howard v. Greenwich Ins. Co., No. 3D19-1922
    • United States
    • Court of Appeal of Florida (US)
    • 9 Septiembre 2020
    ...of a motion to dismiss." 307 So.3d 849 Garnac Grain Co. v. Mejia, 962 So. 2d 408, 410 (Fla. 4th DCA 2007) ; Attias v. Faroy Realty Co., 609 So. 2d 105 (Fla. 3d DCA 1992) (holding that an affirmative defense cannot be raised by a motion to dismiss if the motion requires the court to consider......
  • Newberry Square Fla. Laundromat, LLC v. Jim's Coin Laundry & Dry Cleaners, Inc., No. 1D18-5158
    • United States
    • Court of Appeal of Florida (US)
    • 8 Junio 2020
    ...to dismiss if the motion requires the court "to consider matters outside the four corners of the complaint." Attias v. Faroy Realty Co. , 609 So. 2d 105, 106 (Fla. 3d DCA 1992) ; see also Williams v. Gaffin Indus. Servs., Inc. , 88 So. 3d 1027, 1029 (Fla. 2d DCA 2012) (observing that " ‘[e]......
  • Request a trial to view additional results
7 cases
  • Vause v. Bay Medical Center, No. 94-549
    • United States
    • Court of Appeal of Florida (US)
    • 30 Diciembre 1996
    ...Fla. v. Aetna Casualty and Surety Co., 604 So.2d 850 (Fla. 2d DCA 1992), rev. denied, 613 So.2d 2 (Fla.1993); Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992). Even a relatively straightforward affirmative defense, such as one based upon the statute of limitations, is not a basi......
  • Mettler, Inc. v. Ellen Tracy, Inc., No. 93-02970
    • United States
    • Court of Appeal of Florida (US)
    • 30 Diciembre 1994
    ...on the basis of affirmative defenses unless the affirmative defenses appear on the face of the pleading. Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992); Board of County Com'rs of Polk County, Fla. v. Aetna Cas. & Sur. Co., 604 So.2d 850 (Fla. 2d DCA), review denied, 613 So.2d ......
  • Howard v. Greenwich Ins. Co., No. 3D19-1922
    • United States
    • Court of Appeal of Florida (US)
    • 9 Septiembre 2020
    ...of a motion to dismiss." 307 So.3d 849 Garnac Grain Co. v. Mejia, 962 So. 2d 408, 410 (Fla. 4th DCA 2007) ; Attias v. Faroy Realty Co., 609 So. 2d 105 (Fla. 3d DCA 1992) (holding that an affirmative defense cannot be raised by a motion to dismiss if the motion requires the court to consider......
  • Newberry Square Fla. Laundromat, LLC v. Jim's Coin Laundry & Dry Cleaners, Inc., No. 1D18-5158
    • United States
    • Court of Appeal of Florida (US)
    • 8 Junio 2020
    ...to dismiss if the motion requires the court "to consider matters outside the four corners of the complaint." Attias v. Faroy Realty Co. , 609 So. 2d 105, 106 (Fla. 3d DCA 1992) ; see also Williams v. Gaffin Indus. Servs., Inc. , 88 So. 3d 1027, 1029 (Fla. 2d DCA 2012) (observing that " ‘[e]......
  • Request a trial to view additional results

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