Elser v. Law Offices of James M. Russ, P.A.

• Citation: 679 So.2d 309
• Decision Date: 16 August 1996
• Docket Number: No. 95-2330,95-2330
• Court: Court of Appeal of Florida (US)
• Parties: 21 Fla. L. Weekly D1870 Albert Christian ELSER, III, and Kimberly M. Elser, Appellants, v. LAW OFFICES OF JAMES M. RUSS, P.A., Appellee.

Page 309

679 So.2d 309

21 Fla. L. Weekly D1870

Albert Christian ELSER, III, and Kimberly M. Elser, Appellants, v. LAW OFFICES OF JAMES M. RUSS, P.A., Appellee.

No. 95-2330.

District Court of Appeal of Florida,

Fifth District.

Aug. 16, 1996.

Guy P. Coburn of Rush, Marshall, Reber and Jones, P.A., Orlando, for Appellants.

Terrence E. Kehoe of Law Offices of Terrence E. Kehoe and Tad A. Yates of Law Offices of James M. Russ, P.A., Orlando, for Appellee.

GOSHORN, Judge.

Albert Christian Elser, III and his mother, Kimberly M. Elser ("the Elsers") ¹ appeal the final summary judgment entered in favor of the Law Offices of James Russ, P.A. ("Russ") ² which awarded Russ $40,865.32 in past due legal fees and costs. We reverse because (1) Russ submitted an invalid affidavit which was relied upon by the trial court when entering the summary judgment; and (2) genuine issues of material fact remained. ³

Mr. Elser was arrested in Orange County, Florida, for driving under the influence of alcohol, driving with a suspended license, and driving with a foreign license while his Florida license was suspended. Wisconsin counsel Gregory Ricci, Mrs. Elser's personal attorney, contacted Russ regarding Mr. Elser's arrest and Russ provided Ricci with a fee quotation.

Thereafter, the parties entered into a contract wherein Russ agreed to represent Mr. Elser and the Elsers agreed to pay Russ for its professional services in handling the case. The agreement provided for a $5,000 retainer: $4,500 for fees and $500 for costs. The contract further provides in relevant part:

6. PAYMENT OF FEES, COSTS AND EXPENSES: Fees for professional services shall be billed to Client and shall be deducted from the initial retainer to the extent that said retainer is sufficient. Except as otherwise provided herein, costs and expenses shall be billed to Client and shall be deducted from the initial cost and expense deposit to the extent that said deposit is sufficient. To the extent that the initial retainer and cost and expense deposit is insufficient to cover the amounts billed, any additional amounts shall be billed to Client and shall be due and payable in Attorney's offices not later than ten (10) days from the date of the statement. In the event statements are not contested in writing within ten (10) days from the date of said statement, the statements shall be deemed accepted and the Client hereby waives any objection to same and are hereby estopped from contesting the reasonableness of legal services rendered or the amount due on the account as stated in said statements. Statements are due and payable ten (10) days from the date of the statement, and interest at 1% per month shall be charged on any unpaid fees, costs or expenses not paid within that ten day period....

The first bill Russ sent to the Elsers was dated November 29, 1994, and was for $4,593.75 in attorney's fees. This amount was deducted from the $4,500 retainer, leaving a balance due of $93.75. The second bill, dated December 29, 1994, required payment of an additional $1,900, increasing the total due to $1,993.75. On January 19, 1995, the Elsers paid the $1,993.75. Mr. Elser first learned of the third bill, dated January 29, 1995, on February 2, 1995, when Russ's office manager called Mr. Elser and asked him to come to the Russ office to examine the bill. The attorney's fees for the month of January totalled $35,871.88, and with 1% interest from a previous balance, the total due was $35,872.82. Mr. Elser told the office manager that he was shocked by the amount and that it was impossible for him to pay the bill in full. He further stated that he would have to turn the matter over to Ricci.

On February 9, 1995, Ricci sent a letter by facsimile to Russ questioning the charges due. Ricci stated that he was surprised by the amount of the invoice in light of the parties' initial conversation wherein Russ indicated that the $5,000 retainer should sufficiently cover the matter from start to finish. Ricci noted that he could not advise Mrs. Elser to make payment until Ricci discussed the matter with Russ.

On February 27, 1995, Mr. Russ wrote to the Elsers informing them of a final matter regarding the suspension of Mr. Elser's driver's license that the firm was completing without further charge. Mr. Russ also included a February statement that included an additional $4,343.75 in attorney's fees and $1,406.47 in costs. Finally, Mr. Russ acknowledged that Ricci had raised some questions concerning the January invoice and stated that he would file suit unless the amounts due were paid in full by March 11, 1995.

On March 13, 1995, Russ filed a complaint for breach of contract to recover the attorney's fees and costs incurred in Mr. Elser's case. The Elsers eventually filed a second amended answer, affirmative defenses and counterclaim, admitting that they had entered into the contract and that they had agreed to pay Russ for the reasonable services rendered and costs incurred, while noting that the contract "was conditioned upon said services and expenses being not only reasonably incurred but billed in an amount reasonably related to the work performed."

Russ filed a motion for summary judgment and attached a pleading sworn to by Tad Yates, an attorney in the Russ law firm. Yates stated:

1. I am an attorney, the legal counsel for defendant LAW OFFICES OF JAMES M. RUSS, P.A., and the author of this pleading.

2. The factual statements contained in this pleading are based upon information I have obtained as legal counsel in this case from court records, the attached deposition with exhibits, and interviews conducted by me or on my behalf by employees of this law firm.

The trial court granted Russ's motion and entered final summary judgment in its favor for $40,865.32. This appeal followed the trial court's denial of the Elsers' motion for rehearing.

The Elsers contend that the trial court erred in entering final summary judgment in favor of Russ because the court improperly considered Yates's affidavit as it was not based on personal knowledge. Russ answers that this court should not consider this issue because the Elsers raised it for the first time in their motion for rehearing at the trial level. To support its contention, Russ cites Trinchitella v. D.R.F., Inc., 584 So.2d 35 (Fla. 4th DCA 1991) and School Board of Pinellas County v. Pinellas County Commission, 404 So.2d 1178 (Fla. 2d DCA 1981), rev denied, 413 So.2d 877 (Fla.1982). In Trinchitella, the Fourth District Court of Appeal stated that it could not consider issues raised for the first time in a motion for rehearing in the trial court and cited School Board of Pinellas County for this proposition. See Trinchitella, 584 So.2d at 35. School Board of Pinellas County cited Lipe v. City of Miami, 141 So.2d 738 (Fla.1962) and Buchanan v. Gulf Life Insurance Co., 286 So.2d 223 (Fla. 1st DCA 1973) as support for the same proposition. Our research indicates that there is nothing in the supreme court's opinion in Lipe that alludes to this rule of law. Rather, the court stated it would not consider matters not raised in the trial court below. See Lipe, 141 So.2d at 743.

We decline to follow Trinchitella and School Board of Pinellas County. In our view, the order granting a motion for summary judgment is not final until the motion for rehearing is considered and disposed. Until then, a trial judge is free to consider any legal error or matter overlooked relating to the entry of the summary judgment. Indeed, that is the very purpose of a motion for rehearing.

Furthermore, Buchanan is readily distinguishable from the present case because, unlike the Elsers who were merely pointing out that the trial court could not rely upon Yates's affidavit, the appellant in Buchanan, in her motion for rehearing, "changed her course one hundred and eighty degrees." Buchanan, 286 So.2d at 224. ⁴ We find that the Elsers can present this argument on appeal as grounds to reverse the summary final judgment.

Turning to the merits, we agree with the Elsers that Yates's affidavit was insufficient to support summary judgment because it was not made on personal knowledge, and therefore, the affiant was not competent to testify to the matters set forth therein. See Fla. R. Civ. P. 1.510(e); Thompson v. Citizens Nat'l Bank of Leesburg, 433 So.2d 32, 33 (Fla. 5th DCA 1983) ("An affidavit based on information and belief is not admissible into evidence and should not be considered by the trial court on a motion for summary judgment.").

We also agree with the Elsers that a material issue of fact remains as to whether it was reasonably necessary for Russ to perform the amount of work completed on the case, and thus summary judgment was improper. The Elsers concede that they signed the contract and that they did not pay the amounts due under Russ's third and fourth billing statements. Mr. Elser acknowledged that he had received the billing statements, and he even stated that he had no...