Conroy v. Conroy

• Decision Date: 19 December 1980
• Docket Number: 80-822,Nos. 79-576,s. 79-576
• Citation: 392 So.2d 934
• Parties: Martha S. CONROY, Appellant, v. Andrew Jackson CONROY, L. Guerry Dobbins, Jr. and Walter W. Manley, II, Appellees.
• Court: Florida District Court of Appeals

Page 934

392 So.2d 934

Martha S. CONROY, Appellant, v. Andrew Jackson CONROY, L. Guerry Dobbins, Jr. and Walter W. Manley, II, Appellees.

Nos. 79-576, 80-822.

District Court of Appeal of Florida, Second District.

Dec. 19, 1980.

J. Russell Hornsby of Law Offices of J. Russell Hornsby, Orlando, for appellant.

R. Philip Haddock, Lakeland, for appellee Andrew Jackson Conroy.

L. Guerry Dobbins, Jr. and Walter W. Manley, II, pro se.

GRIMES, Acting Chief Judge.

These are consolidated appeals from orders imposing a charging lien upon the proceeds of a judgment obtained by attorneys for their client and held by them in their trust account.

Martha S. Conroy retained the law offices of Walter W. Manley to represent her in dissolution proceedings. When Mr. Manley died, Walter W. Manley, II and L. Guerry Dobbins, Jr., his successors in interest in the law firm, continued to represent Mrs. Conroy.

At the trial, Mrs. Conroy's attorneys sought to have her husband pay her attorneys' fees, and they furnished testimony concerning the amount of a reasonable fee. However, the court concluded that Mrs. Conroy had sufficient funds to pay her own attorney. The court determined that $16,000.00 was a reasonable fee and ordered Mrs. Conroy to pay it.

Mrs. Conroy appealed certain aspects of the final judgment to this court. We affirmed the judgment in all respects except that we held that the court had no authority, absent a claim for a charging lien, to require a party to pay his or her attorney for representation during that proceeding. Conroy v. Conroy, 370 So.2d 1188 (Fla. 2d DCA 1979). Our opinion included a footnote which observed that subsequent to the entry of the final judgment, Mrs. Conroy's counsel had made a claim for a charging lien, and we suggested that once our mandate had gone down, the attorneys would be able "to pursue this remedy or seek redress in a separate action." 370 So.2d at 1189 n.1.

Following the issuance of our mandate, Mrs. Conroy's attorneys did pursue their claim for a charging lien. During the course of the litigation, the sum of $19,724.42 had been deposited in the attorneys' trust account pursuant to stipulation of the parties to abide the outcome of the suit. The entitlement to these funds, which were the proceeds of a purchase money note and mortgage, was in dispute. The attorneys' petition to establish a charging lien was directed to these funds because the trial judge had awarded them to Mrs. Conroy in the judgment of dissolution.

The court granted the attorneys' petition and retained jurisdiction to determine the amount of the lien. Following another hearing, the court held that $19,300.00 was a reasonable fee for the attorneys' services through the entry of the final judgment. After adding interest and costs and deducting the amount of an initial retainer, the court imposed a charging lien of $22,168.42 upon any of Mrs. Conroy's funds in the possession of her attorneys.

The amount of the fee is not an issue in this appeal. Furthermore, while Mrs. Conroy disputes it, Mr. Manley testified that he made it clear to her that she would be obligated to her attorneys for a reasonable fee, though they would endeavor to have the court require her husband to pay it. Therefore, the significant issue on this appeal is not whether Mrs. Conroy owes the attorneys a fee but whether the court could impose a charging lien on the proceeds of the judgment held in trust for her in the absence of any agreement on her part that the fee would come from these proceeds. ¹

Generally speaking, a charging lien gives an attorney the right to recover his fees and costs from the funds recovered through his services. Webster v. Sweat, 65 F.2d 109 (5th Cir. 1933); Royal Insurance Co. v. Simon, 20 Del.Ch. 297, 174 A. 444 (1934). Rather than depending upon the attorney's possession of the property, it is founded upon the equitable notion that an attorney ought to receive his fees and disbursements out of the judgment he has obtained. Tracy v. Ringole, 87 Cal.App. 549, 262 P. 73 (1927); 7 Am.Jur.2d Attorneys at Law § 324 (1980). Florida has long recognized the right to an attorney's charging lien. In re Barker's Estate, 75 So.2d 303 (Fla.1954); Winn v. City of Cocoa, 75 So.2d 909 (Fla.1954); Carter v. Davis, 8 Fla. 183 (1858); Chancey v. Bauer, 97 F.2d 293 (5th Cir. 1938). Yet, in cases involving the recovery of real estate, our supreme court has held that before a court may impose a charging lien, there must have been an express or an implied agreement that the attorney would be entitled to recover his fee out of the proceeds of the judgment. Billingham v. Thiele, 109 So.2d 763 (Fla.1959).

In Stern v. Stern, 50 So.2d 119 (Fla.1951), the court refused to require the husband to pay his wife's attorneys' fees but awarded her attorneys a fee of $1,500.00 to be secured by a lien on her undivided half interest in the parties home. The home had been owned as tenants by the entirety, and the final judgment decreed that the ownership would thenceforth be as tenants in common. In reversing the judgment in part, the supreme court said:

We find no error in the fee awarded plaintiff's solicitors but we fail to find support for that part of the final decree retaining jurisdiction of the cause to "award plaintiff's solicitors a lien upon plaintiff's undivided half interest in and to said real estate for any sums remaining due them on account thereof." There are cases in which an attorney's lien for services may be impressed and enforced in equity, as when his contract so provides or when he collects money and moves promptly to safeguard his lien, but such a lien ordinarily conveys no interest in the rem that may be enforced at law. Nichols v. Kroelinger, Fla., 46 So.2d 722, 723. The rule is that when a man seeks a divorce from his wife and she is without funds, he is required to bear the cost of the litigation including the wife's solicitors' fees. Since the record shows that the plaintiff was without means this case is amenable to that rule. The fact that the parties could not readjust themselves to it and make a success of the marriage venture does not relieve the man of the wife's claim for the expenses of the litigation.

50 So.2d at 120. The court cited Stern with approval in Lamoureux v. Lamoureux, 59 So.2d 9 (Fla.1951), and later our court in Wilkerson v. Wilkerson, 179 So.2d 592 (Fla.2d DCA 1965), purported to follow the principle of Lamoureux in holding that the husband's attorney was not entitled to a charging lien in the husband's interest in certain corporate stock which had been the subject of the litigation.

Mrs. Conroy argues that this line of cases stands for the proposition that an attorney may never obtain a charging lien unless there is an agreement that the fee would be paid from the proceeds of the litigation. She also suggests that even if a prior agreement is not always required where the recovery of personal property is involved, these cases hold, at the very least, that there can be no charging liens imposed in divorce actions.

We do not construe these cases so broadly. In the first place, the attorney had actually made no recovery of property in the Stern case because the final judgment merely had the effect of...