Chaachou v. Chaachou, 59-548

• Decision Date: 30 June 1960
• Docket Number: No. 59-548,59-548
• Citation: 122 So.2d 24
• Parties: Khudourie CHAACHOU, Appellant, v. Fredericka Phillips CHAACHOU et al., Appellees.
• Court: Florida District Court of Appeals

Page 24

122 So.2d 24

Khudourie CHAACHOU, Appellant, v. Fredericka Phillips CHAACHOU et al., Appellees.

No. 59-548.

District Court of Appeal of Florida, Third District.

June 30, 1960.

Rehearing Denied July 22, 1960.

John Carruthers, II, Coral Gables, for appellant.

Sibley, Grusmark, Barkdull & King, Miami Beach, for appellees Cypen, Salmon & Cypen.

PER CURIAM.

The appellant is the defendant in a suit for divorce which has been pending in the circuit court in Dade County for a number of years. He has appealed from a judgment for fees, entered in the divorce suit, in favor of attorneys who had represented him during part of the progress of the case. The determination of the right of the attorneys to a fee from the defendant who was their client, and the determination of the amount to be allowed for such fee was made by the court in a summary proceeding held in the divorce suit based on a petition filed by the attorneys.

The record of the matter discloses that in the divorce suit which was commenced in 1952 Irving Cypen began to represent the defendants therein in February of 1956; that in June of 1956 he associated himself with others and formed the firm of Cypen, Salmon & Cypen. Thereafter Irving Cypen was appointed a circuit judge of the Eleventh Judicial Circuit and representation of the defendants by him or by his firm ended or was terminated in November, 1958. Without formal substitution of counsel the defendant was represented in certain subsequent proceedings in the case for the next few months by other attorneys. Four to five months after their services were terminated, the Cypen firm filed a petition in the divorce suit, on March 30, 1959, asking that their clients, the defendants in the suit, be required to show cause why they should not pay them further fees. Their petition alleged employment for the period above mentioned; that the clients had agreed to pay them reasonable compensation for representing them in the suit; and that they had performed services which entitled them to fees above the $10,000 which they alleged had been paid. ¹

Based on the petition the court issued a rule directing the appellant and three corporate defendants to show cause on April 3, 1959, 'why the defendants should not pay the balance of the attorneys' fees due and owing to the firm of Cypen, Salmon & Cypen.' On the return day, the defendants filed a motion to quash the rule, challenging the right of the court to require the clients to pay fees to the attorneys in summary proceedings in the divorce suit. Sometime after the hearing on the motion to quash an order was made reserving ruling thereon, and setting the matter for final disposition July 17, 1959. The petition was then heard pursuant to the last mentioned order and resulted in the order appealed from, and which order determined that the firm of Cypen & Salmon (apparently the successor to the firm for which fees were sought, which was Cypen, Salmon & Cypen) was entitled to additional compensation, determined the amount of reasonable compensation to be paid them, granted judgment thereon, ordered the defendant Chaachou to pay such sum on or before August 24, and that in default of payment of the judgment by that date execution should issue thereon. The judgment ran against the defendant Khudourie Chaachou only, and not against the order three respondents to the rule to show cause, and this appeal therefrom is by Khudourie Chaachou.

The appellant filed a number of assignments of error which included contentions that the court erred in failing to grant the motion to quash and in entertaining jurisdiction, in the equity suit, of a separate fee controversy between the defendant husband and his attorneys. Based on such assignments the appellant's brief stated the following question:

'Whether the chancellor, sitting in equity in the circuit court, may entertain petition for rule to show cause why attorney's fees should not be paid when the payment of fees between attorney and client was agreed to be upon a reasonable fee basis.'

In seeking reversal the appellant relied on Brass v. Reed, Fla.1953, 64 So.2d 646; D'Agostino v. Peoples Water and Gas Co., Fla.1955, 78 So.2d 739, and Brasch v. Brasch, Fla.App.1959, 109 So.2d 584, and argued that under those authorities the court was in error in trying these questions as to fees between the client and the attorneys in the equity divorce rather than in a separate action between them, and particularly by the procedure of directing a rule to show cause against the client on petition of his attorneys.

Appellee argued that as Chaachou had terminated the employment of the Cypen firm and proceeded with other counsel without making a substitution in the cause, the matter should be treated as though he were applying for substitution of counsel and that the court could properly try the questions relating to the right to fees and their amount in the divorce suit as between attorneys and their client, and make the payment thereof a condition of substitution of counsel. Appellee cited certain federal decisions and authorities from several states which sanction a summary trial and determination of questions relating to fees incident to substitution of counsel in a case.

While there is a division of authority on that question in other jurisdictions, it is clearly established in Florida that where no charging lien is involved a lawyer's disputed claim for fees should not be tried against his client in a summary proceeding in an equity suit out of which the claim may have arisen, but must be...