Fernandes v. Barrs

• Decision Date: 30 August 1994
• Docket Number: No. 93-1113,93-1113
• Citation: 641 So.2d 1371
• Parties: 19 Fla. L. Weekly D1835 Gary L. FERNANDES, Sr., Appellant, v. Bobby BARRS and Shirley Barrs, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 1371

641 So.2d 1371

19 Fla. L. Weekly D1835

Gary L. FERNANDES, Sr., Appellant, v. Bobby BARRS and Shirley Barrs, his wife, Appellees.

No. 93-1113.

District Court of Appeal of Florida First District.

Aug. 30, 1994.

John S. Derr of Bush & Derr, P.A., Tallahassee, Karen J. Haas of Law Offices of Karen J. Haas, Miami, and Michael Arlington, Jacksonville, for appellant.

Rod Bowdoin of Darby, Peele, Bowdoin & Payne, Lake City, for appellees.

DAVIS, Judge.

Attorney Gary Fernandes appeals a trial court judgment against him in the amount of $398,670 in damages for legal malpractice in his representation of Bobby and Shirley Barrs, entered after a bench trial, and appeals an order awarding attorney's fees and costs in the amount of $76,543.66. The damages were apportioned as follows: $378,687.00 for Bobby Barrs' damages, $90,000 for Shirley Barrs' damages for loss of consortium, less the $70,000 received in settlement from Lake City Community College. Mr. Fernandes asserts that the trial court erred because there was no evidence of a contract between himself and the Barrs; that, even if there had been a contract, the measure of damages in a legal malpractice action is the amount which could have been recovered in the underlying lawsuit, which in this case was limited by the $100,000 per person cap on damages against State agencies or subdivisions, pursuant to section 768.28, Florida Statutes; and finally, that the trial court erred in awarding attorney's fees to the Barrs because the lack of evidence of any contract for representation made it reasonable for Mr. Fernandes to reject the Barrs' $75,000 offer of judgment. We affirm the trial court's judgment insofar as it determines that a contract existed between Mr. Fernandes and the Barrs for legal representation and affirm the award of attorney's fees and costs. We reverse in part the award of damages and remand for further proceedings.

Bobby Barrs owned and operated a commercial and automotive battery business. On September 15, 1987, Mr. Barrs went to Lake City Community College to deliver a battery. He went to the maintenance shop and had to wait. He sat in a chair which appeared normal and had no warning signs on it. In fact, the chair had been sent to the shop for repair. While Mr. Barrs was sitting in the chair, it collapsed. His resulting back and hand injuries required four surgeries. Mr. Barrs tried for some time to get the College to settle with him without his having to hire an attorney.

The parties agree that Mr. Barrs first called Mr. Fernandes on November 29, 1989, and made an appointment to come in and see him. That appointment was held on December 1, 1989. It is also undisputed that no written fee agreement or other written contract of employment was executed at that date or at any other time. Mr. Fernandes asserts that there was no evidence whatsoever below to support the finding of the trial court that a contract existed. On February 20, 1990, Mr. Fernandes sent a letter to Mr. and Mrs. Barrs, saying he could not represent them in their "worker's compensation case" and returning some medical records and papers they had given to him.

Mr. Fernandes takes the position that he spoke by phone with the Barrs in July 1990, and that as a result of that phone call he called Mr. Mechaney, the claims adjuster for the College's insurance carrier. Mr. Fernandes asserts that he told Mr. Mechaney that he was calling to see what could be done to resolve the claim, but that he was not representing the Barrs at that time. Though he could not tell if the Barrs were in Mr. Fernandes' office, Mr. Mechaney confirmed that Mr. Fernandes told him he was not representing the Barrs. Mr. Fernandes denies seeing the Barrs in person again until November 1990, after the statute had run. The Barrs assert they came to Fernandes' office in both July and August 1990.

Mr. and Mrs. Barrs assert that they actually went to see Mr. Fernandes on July 6, 1990, and that he placed that call to Mr. Mechaney while they were in his office. After that call and some further discussion, according to the Barrs, Mr. Fernandes offered to represent them on a contingency basis for a fee of 33 1/3% of the recovery plus expenses, and the Barrs accepted. Purportedly, Mr. Fernandes told them then and again at another meeting in early August that he was too busy to deal with a written contract just then, but that there was plenty of time to get to that later, since they had a four year statute of limitations on their claim. According to the Barrs, Mrs. Barrs phoned Mr. Fernandes on August 6th, and he said he was going to be speaking with someone representing the claims adjuster and she should call back that afternoon. She produced phone records as evidence of those two calls. Allegedly, Mr. Fernandes told Mrs. Barrs during the second phone conversation to come in for a conference, and Mr. and Mrs. Barrs went to Fernandes' office some time between that conversation on August 6th and August 10th. The Barrs assert that at this August meeting Mr. Fernandes advised them to obtain a letter from Dr. Slattery to connect Mr. Barrs' carpal tunnel syndrome to his accident. The Barrs obtained such a letter, and it was dated August 10th. Though Mr. Fernandes denies that this August meeting even took place, the Barrs both assert that he told them the insurance carrier for the College required this letter and that it was important to get it as soon as possible. Mrs. Barrs testified further that this August 10th letter from Dr. Slattery was one of the documents returned to her when she asked for her husband's file after Mr. Fernandes' second letter saying he could not represent them, dated November 16, 1990.

The three year time limit for filing a written notice of claim expired in September 1990. Mrs. Barrs testified that she next spoke with Mr. Fernandes by phone on November 9, 1990, at which time he introduced her to a partner in his firm named Mr. Turnage who would be working on their case, while assuring them he, Fernandes, was still their lawyer. Mr. Mechaney testified that he spoke with Mr. Fernandes by phone on November 9, 1990, and that Fernandes told Mechaney that Fernandes was representing the Barrs, and that a Mr. Turnage from his firm would be handling the matter.

The parties agree that Mr. and Mrs. Barrs came in to Mr. Fernandes' office on November 15, 1990. The Barrs assert they came in because they had an appointment. Mr. Fernandes asserts they showed up unannounced and unexpected, and that he asked Mr. Turnage to see them because he was busy. During his conference with Mr. and Mrs. Barrs, Mr. Turnage figured out that the three year time limit for filing a written notice of claim had expired. He told them to go home. A letter dated November 16, 1990, was sent to the Barrs in which Mr. Fernandes and Mr. Turnage informed the Barrs that their firm could not undertake to represent them because the time had run for giving the statutorily required notice.

The first issue is whether there was sufficient evidence of the existence of a contract for representation to sustain the lower court's finding that a contract existed. Mr. Fernandes relies on the fact that the Rules of Professional Conduct for members of The Florida Bar require contingent fee contracts to be in writing. This reliance is misplaced. Despite this rule requiring contingency fee contracts to be in writing, some courts have enforced oral contingent fee contracts, holding that the rule does not create any presumption that a legal duty has been breached. See, e.g., Harvard Farms, Inc. v. National Casualty Co., 617 So.2d 400 (Fla. 3d DCA 1993). If the client cannot use the failure to obey the rule to establish that a legal duty was breached, the attorney may not be permitted to rely upon the existence of the rule to establish that a contract was not created in a situation where there is evidence of intent to form an oral contingent fee contract.

Furthermore, notwithstanding the fact that Mr. Fernandes asserts no less than ten times in his briefs that there was no evidence of a contract between himself and the Barrs, there was in fact competent substantial evidence supporting the claim of the Barrs that such a contract existed. Mrs. Barrs produced office records with notes of appointments that Mr. Fernandes denied ever took place. She produced phone records to back her testimony regarding her phone calls with Fernandes. Attorney Fernandes denied speaking with the Barrs on November 9, 1990, and informing them that, while he was their attorney, his partner Mr. Turnage would be helping him with the paperwork. The Barrs' contention that that conversation took place was supported by the apparently disinterested testimony of Mr. Mechaney, an employee of the College's claims adjuster. Mr. Mechaney testified that he too spoke with Fernandes on November 9, 1990, and that Fernandes told Mechaney that he was representing the Barrs and that a Mr. Turnage from his office would be working on the case. With regard to the specifics of the contract, the Barrs testified that it was formed on July 6, 1990, that they agreed to pay Mr. Fernandes a contingent fee of 33 1/3% plus expenses, and that they discussed with him on that day what was meant by expenses. As in Isaak v. Chardan Corp., 532 So.2d 1364 (Fla. 2d DCA 1988), there is sufficient competent substantial evidence in this conflicting testimony to support a conclusion that an oral contract did exist.

Mr. Fernandes' second ground for asserting that the trial court erred is that cases involving claims of attorney malpractice limit the recovery against the attorney to that which the claimant would have been entitled to recover on the underlying claim, and therefore his liability could be no greater than the statutory cap on damages which would have applied in the Barrs' lawsuit against Lake City Community College. Mr. Fernandes argues that if there was a contract his liability should be measured...