BRICKELL PLACE CONDO v. Joseph H. Ganguzza & Assocs.
| Decision Date | 31 March 2010 |
| Docket Number | No. 3D09-1963.,3D09-1963. |
| Citation | 31 So.3d 287 |
| Parties | BRICKELL PLACE CONDO ASSOCIATION, INC., et al., Appellants, v. JOSEPH H. GANGUZZA & ASSOCIATES, P.A., Appellee. |
| Court | Florida District Court of Appeals |
Alexis Gonzalez, Miami, and Albert E. Acuna, for appellants.
Joseph H. Ganguzza and Paul McKenna, Miami, and Jennifer Ann Coya, for appellee.
Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
Two Florida condominium associations, Brickell Place Condominium Association, Inc. and The Clipper Condominium Association, Inc. (collectively, "the Associations"), appeal the denial of their emergency motion for injunctive relief in which the Associations sought to obtain a copy of their case files being retained by their former counsel Ganguzza & Associates, P.A. ("the law firm").
As we find that the fee arrangement for collection and foreclosure matters was, in reality, a contingent fee arrangement and a law firm may not assert a retaining lien for fees owed in a contingency fee case until the contingency has occurred, we find that the retaining lien was unlawful.
The record reflects that the Associations employed the law firm for twenty years to represent them in (1) litigation and general matters; and (2) collection and foreclosure matters.
When Joseph H. Ganguzza, Esq., the law firm's sole shareholder, died, the Associations terminated their relationship with the law firm, retained new counsel, and requested that the law firm transfer all of the Associations' files to its new counsel. Instead, the law firm filed a retaining lien and refused to provide the Associations with a copy of their files unless the Associations paid the law firm for its services on the pending collection and foreclosure cases even though the delinquent unit owners had not brought their accounts current. The Associations filed the instant emergency motion for injunctive relief to obtain a copy of these files.
At the hearing on the Associations' motion, the Associations argued that for collection and foreclosure matters, the Associations and the law firm operated under a contingency fee arrangement. The Associations, therefore, claimed that the law firm, could only recover the reasonable value for its services, limited by the maximum contract fee, upon the successful occurrence of the contingency. Because the contingency upon which the services were based has not yet occurred (the collection of the delinquent unit owners' fees), the law firm is not yet entitled to be paid for its services and the retaining lien filed by the law firm cannot be legally or ethically maintained. We agree.
A retaining lien differs from a charging lien. A charging lien is placed on any monetary recovery due the client at the conclusion of the lawsuit. Andrew Hall & Assocs. v. Ghanem, 679 So.2d 60, 61 (Fla. 4th DCA 1996); 7 Am.Jur.2d Atty's at Law § 324 (1980). On the other hand, a retaining lien is a passive lien and rests entirely on the right of an attorney to retain possession of his client's papers, money, securities, and files as security for payment of the fees and costs earned by the law firm to that point. Wintter v. Fabber, 618 So.2d 375, 377 (Fla. 4th DCA 1993).
It is well recognized, and the Associations do not dispute, that an attorney may file and maintain a retaining lien against a client or former client's legal files until the lawyer's fees have been paid or an adequate security for payment has been posted. Andrew Hall & Assocs., 679 So.2d at 61; Wintter, 618 So.2d at 377.
American courts, with few exceptions, have held that in cases where the client, not the attorney, terminates the relationship, the client cannot compel his former attorney to deliver up papers or documents in the attorney's possession that are secured by a retaining lien. Wintter, 618 So.2d at 377. The...
To continue reading
Request your trial
-
Stratos v. AIG Prop. Cas. Co.
... ... paid. Andrew Hall & Assocs. v. Ghanem , 679 So.2d ... 60, 61 (Fla. 4th ... See, e.g., Buckley ... Towers Condo., Inc. v. QBE Ins. Corp., No. 07-22988-CIV, 2012 ... Ghanem , 679 So.2d at 61; Brickell Place Condo ... Ass'n v. Joseph H. Ganguzza ... ...
-
Wright v. Guy Yudin & Foster, LLP
...the contingency was not met, no attorneys' fees were ever due. Appellant relies principally on Brickell Place Condo Ass'n v. Joseph H. Ganguzza & Associates, P.A.,31 So.3d 287 (Fla. 3d DCA 2010), in support of his position.In Brickell Place,the court provided a succinct definition of a cont......
-
Fox v. Widjaya
...until the legal fees have been paid or an adequate security for payment has been posted. Brickell Place Condo. Ass'n, Inc. v. Joseph H. Ganguzza & Assocs., P.A., 31 So.3d 287 (Fla. 3d DCA 2010) ; Andrew Hall & Assocs. v. Ghanem, 679 So.2d 60, 61 (Fla. 4th DCA 1996).2 Widjaya's argument—that......
-
Lavere–alvaro v. Syprett
...705, 706 (Fla. 2d DCA 2003); Boroff v. Bic Corp., 718 So.2d 348, 349 (Fla. 2d DCA 1998); Brickell Place Condo Ass'n v. Joseph H. Ganguzza & Assocs., P.A., 31 So.3d 287, 289 (Fla. 3d DCA 2010). ...
-
Lien cases
...to him in the judgment or recovery in that particular suit.”). 6. Brickell Place Condo. Ass’n, Inc. v. Joseph H. Ganguzza & Assoc., P.A. , 31 So.3d 287, 289-90 (Fla. 3d DCA 2010) (“A charging lien is placed on any monetary recovery due the client at the conclusion of the lawsuit; on the oth......
-
Chapter 17-3 Procedures to Recover Attorney's Fees
...Chandris, S.A. v. Yanakakis, 668 So. 2d 180, 185 (Fla. 1995); Brickell Place Condo Association, Inc. v. Ganguzza & Associates, P.A., 31 So. 3d 287, 290 (Fla. 3d DCA 2010).[69] Pompano Ledger v. Greater Pompano Beach Chamber of Commerce, 802 So. 2d 438, 438-39 (Fla. 4th DCA 2001); Wolfe v. N......
-
Chapter 16-3 Procedures to Recover Attorney's Fees
...Chandris, S.A. v. Yanakakis, 668 So. 2d 180, 185 (Fla. 1995); Brickell Place Condo Association, Inc. v. Ganguzza & Associates, P.A., 31 So. 3d 287, 290 (Fla. 3d DCA 2010).[70] Pompano Ledger v. Greater Pompano Beach Chamber of Commerce, 802 So. 2d 438, 438-39 (Fla. 4th DCA 2001); Wolfe v. N......