Billingham v. Thiele

• Decision Date: 30 July 1958
• Docket Number: No. 75,75
• Citation: 107 So.2d 238
• Parties: Ira E. BILLINGHAM, Appellant, v. Ellsworth W. THIELE et al., Appellees.
• Court: Florida District Court of Appeals

Page 238

107 So.2d 238

Ira E. BILLINGHAM, Appellant, v. Ellsworth W. THIELE et al., Appellees.

No. 75.

District Court of Appeal of Florida, Second District.

July 30, 1958.

Rehearing Denied Sept. 8, 1958.

A. N. Spence, Miami, for appellant.

Edward A. Linney, of Nelson & Linney, St. Petersburg, for appellees.

SHANNON, Judge.

The appellant, an attorney at law, who was the plaintiff below, appeals from the final decree of the chancellor below holding that the plaintiff did not have a lien upon the real property involved and also, of his own motion, setting aside a summary judgment against certain defendants.

The defendants, individually, were owners of certain small tracts of land referred to as 'units' which they had purchased from a corporation known as Osceola Groves, Inc. After purchasing these lands the defendants had leased them back to the Osceola Groves, Inc. for 99 years under an agreement whereby the Osceola Groves, Inc. would plant and care for the various units, deducting the costs and then paying to the owner 80 percent of the net proceeds received in the sale of cirtrus products. Prior to the time in question the various individual owners organized a group known as the Unit Owners Protective Group and each individual signed an instrument called 'authority to represent', which read as follows 'As a member of the Unit Owners Protective Group re Osceola Groves, Inc., I or we hereby authorize and request that the Committee of the group retain and employ their attorney, Ira E. Billingham, Esq., of Miami, Florida, to represent me in all matters pertaining to my interests in real property now being operated and managed by Osceola Groves, Inc., of Clewiston, Florida, its present or past officers thereof, to bring such legal action for damages or any other procedure necessary for my or our protection.

'I own or have acquired the following described property in the Osceola Groves, Inc. subdivisions in Plam Beach County, Florida:

'Tract #

'Unit #

'It is further understood that all legal and other expenses are to be prorated equally among the Unit Owners Protective on a unit basis.'

The plaintiff, as an attorney, did various legal work for the defendants including his having Osceola Groves, Inc. adjudged bankrupt, and through the bankruptcy proceedings was successful in getting the 99 year leases and the supplemental agreements cancelled and the property relieved of any charge for maintenance costs, etc. While still representing the defendants, plaintiff filed a suit against them for his fees and had a Notice of Lis Pendens placed against various pieces of property owned by such defendants. This suit was filed on July 28, 1955. In this suit it was alleged:

'It was further understood and agreed * * * that a lien would be placed upon the property, owned by the members, for the value of such service rendered until the same was paid or released.'

There was no service upon the defendants and the suit was allowed to remain dormant until July 27, 1956, when the plaintiff filed another suit against the same defendants and had another Notice of Lis Pendens filed. In this suit there was also an allegation identical to the allegations which we have already quoted to the effect that there was an agreement between the plaintiff and defendants that a lien would be placed upon the property of the defendants for the value of the plaintiff's service. In the latter suit service was had against all the defendants, some of whom answered and some of whom did not. Against the latter defendants he took decrees pro confesso, which were followed by the entry of a summary judgment. The defendants who answered filed pleadings including an amended answer, and amended motion to dismiss and a motion to dissolve and discharge Notice of Lis Pendens. Under date of May 16, 1957, the chancellor made its Order of Reference to the Special Master, 'To try the issue as to the merits of said Motion to Dissolve and Discharge the Notice of Lis Pendens * * * and to make report to this Court of his findings of fact, conclusions of law, and recommendations.' Pursuant to the Order of Reference the Special Master took testimony, including that of the plaintiff, and filed the same on July 18, 1957, in which, as a conclusion of law, he held that the plaintiff did not have a lien upon the real property of the defendants and upon his findings that the summary judgment against the nonanswering defendant could not be set aside and declared the same to be 'the law of the case'.

The chancellor held, upon exception to the Master's report, that the plaintiff did not have a lien on the property of the defendants and, of his own motion, the chancellor set aside the summary judgment and decrees pro confesso against the nonanswering defendants.

The plaintiff, in his appeal, assigns two points to be argued:

1. That the chancellor erred in holding that the plaintiff did not have a lien upon the real property of the defendants, and 2. The chancellor erred in setting aside the summary judgment.

In this testimony plaintiff readily admits that there was no agreement with the defendants relative to his having a lien on the land other than as shown by the agreement. So it is a question under the facts in this case whether he could legally impress a lien upon the real property of the defendants as was attempted.

The special master, after citing many Florida cases, decided that he, the plaintiff, had no right to a lien under the fact situation as is here involved. We have come to a definite conclusion after studying all of the Florida cases on the subject.

In 7 C.J.S. Attorney and Client § 228 c, the general rule is stated to be that, in the absence of statute or special agreement, an attorney has no lien on the land of his client, although he has successfully prosecuted a suit to establish the clients' title, or recovered title or possession for the client, and cites the case of Guthrie v. Home Building & Loan Co., 116 Fla. 822, 156 So. 882, as authority for the majority rule. Then, in 5 Am.Jur., Attorney at Law, Section 238, the same rule is set out, but a Florida case is cited for the minority, Scott v. Kirtley, 113 Fla. 637, 152 So. 721, 93 A.L.R. 661.

In the Guthrie case, an attorney sought to have a lien declared in his favor by reason of fact that he had foreclosed certain mortgages and rendered certain other legal services. In sustaining the lower court's dismissal of the bill of complaint, our court stated:

'If, as attempted to be alleged in the amended bill of complaint, the complainant has an equitable interest to be subserved by the payment over to him of certain moneys that are due to be paid to him from time to time by defendant when and as certain lands and properties foreclosed upon (to which it is alleged defendant has acquired the title by reason by of legal services furnished by complainant in that behalf) are resold by the defendant and the purchase price thereof realized by it, complainant may have an equity against defendant in the nature of a right to specific performance of the defendant's agreement to pay over to him, as the rightful recipient thereof, those moneys which when and after receipt would constitute complainant's attorney's fees, and concerning which defendant would be charged with a liability to account because of the trust nature of the underlying transactions and relationship between the parties heretofore transpiring with reference thereto.

'(1) But neither the original bill nor the amended bill seems to have been framed on any such theory, but rather on the theory that complainant has a present lien against the properties themselves, not on the proceeds of the sale thereof for the amount of his attorney's fees included therein.'

This case very definitely holds that an attorney has no lien for his fees against the land that was acquired by his clients by reason of the attorney's services in foreclosing, but also in this case the court states:

'Since this cause was decided in the court below, this court has concluded some of the propositions involved herein, by its decision rendered in the case of Scott v. Kirtley, 113 Fla. 637, 152 So. 721, 93 A.L.R. 661. See, also, Alyea v. Hampton, 112 Fla. 61, 150 So. 242, and Smith v. Tyding, 100 Fla. 1414, 131 So. 319.'

Since the Guthrie case holds in the absence of an agreement that the attorney had no equitable lien upon the land itself, we should have to look at Scott v. Kirtley, supra. In the Scott case the attorney, when he was employed by the defendant, was told that the defendant was completely out of funds and unable to pay the attorney a retainer or other fee at the time she engaged him, and that it was accordingly arranged between the parties that the attorney so employed would be paid his fees out of what the client should realize as a result of the successful effort of the attorney. Our court held that the attorney had an equitable lien on the property he recovered for his client stating (113 Fla. 637, 152 So. 723):

'We are of the opinion that where, as the result of services rendered by an attorney at law in suing for and recovering for his client certain real estate, the client has realized the real estate as fruits of the attorney's professional services, under an express or implied understanding on the part of both attorney and client that a reasonable attorney's fee would be charged, and would of necessity be payable out of the property realized by the client as a result of the successful efforts of the attorney in litigating for it, even in the absence of any express contract for a definite amount of eee, an equitable lien, based upon the fundamental maxim of equity that no one shall be unjustly enriched at another's expense, may be implied and declared by a court of chancery out of general considerations of right and justice which must be applied to the relations of the attorney and client with reference to the fruits of the transaction, and the circumstance...