Flynn v. Sarasota County Public Hosp. Bd.

• Decision Date: 15 October 2001
• Docket Number: No. 8:97-CV-2911-T-26TBM.,8:97-CV-2911-T-26TBM.
• Citation: 169 F.Supp.2d 1363
• Parties: Gregory T. FLYNN, M.D., Plaintiff, v. SARASOTA COUNTY PUBLIC HOSPITAL BOARD d/b/a Sarasota Memorial Hospital, Defendant. Gardner, Wilkes, Shaheen & Candelora, P.A., Claimant, v. Gregory T. Flynn, M.D., Respondent.
• Court: U.S. District Court — Middle District of Florida

169 F.Supp.2d 1363

Gregory T. FLYNN, M.D., Plaintiff, v. SARASOTA COUNTY PUBLIC HOSPITAL BOARD d/b/a Sarasota Memorial Hospital, Defendant.

Gardner, Wilkes, Shaheen & Candelora, P.A., Claimant, v. Gregory T. Flynn, M.D., Respondent.

No. 8:97-CV-2911-T-26TBM.

United States District Court, M.D. Florida, Tampa Division.

October 15, 2001.

Richard B. Wilkes, Gardner, Wilkes, Shaheen & Candelora, Tampa, FL, Scott A. Forman, Vernis & Bowling of Miami, P.A., North Miami, FL, Anthony Thomas Leon, Law Firm of Anthony T. Leon, Tarpon Springs, FL, for plaintiff.

Frank E. Strelec, Frazer Frost Hilder, David A. Wallace, Williams, Parker, Harrison, Dietz & Getzen, Sarasota, FL, for defendant.

Richard B. Wilkes, Joshua E. Burnett, Gardner, Wilkes, Shaheen & Candelora, Tampa, FL, for claimant.

Rodney W. Morgan, Shear, Newman, Rosenkrana, Burton & Lamb, P.A., Matthew J. Meyer, Piper Marbury Rudnick & Wolfe, Tampa, FL, for movant.

ORDER

LAZZARA, District Judge.

This cause comes before the Court pursuant to the Report and Recommendation of Magistrate Judge Thomas B. McCoun, III (Dkt.295), recommending that the Notice of Charging Lien (Dkt.211) be discharged and no additional fees for Gardner, Wilkes, Shaheen & Candelora, P.A. (Gardner Wilkes) be permitted. Gardner Wilkes has filed Objections (Dkt.299), and Dr. Flynn has filed a Response (Dkt.301). Gardner Wilkes seeks additional attorney's fees of $250,000, or to impose a charging lien in an undetermined amount. After carefully considering the Notice of Charging Lien (Dkt.211), the Amended Response to Notice of Charging Lien (Dkt.215), the Report and Recommendation on the validity of the charging lien, the Objections, the Response, the transcript of the evidentiary hearing held before Judge McCoun on July 16 and 17, 2001 (Dkts. 289, 290, and 294), a post-hearing memorandum filed by Dr. Flynn (Dkt.291), a post-hearing memorandum filed by Gardner Wilkes (Dkt.292), and the numerous admitted exhibits in the file, the Court concludes that the Report and Recommendation should be confirmed and approved in all respects and made a part of this order for all purposes.

It is therefore ORDERED AND ADJUDGED as follows:

1. The Report and Recommendation of Magistrate Judge Thomas B. McCoun, III (Dkt.295) is confirmed and approved in all respects and made a part of this order for all purposes. Hence, Gardner Wilkes is not entitled to any additional attorney's fees from Dr. Flynn.

2. The Charging Lien (Dkt.211) is hereby discharged.

REPORT AND RECOMMENDATION

MCCOUN, United States Magistrate Judge.

THIS MATTER is before the court for a Report and Recommendation on the Notice of Charging Lien (Doc. 211) filed in this cause on October 13, 1999, by former counsel to Plaintiff, Gardner, Wilkes, Shaheen & Candelora, P.A. ("Gardner, Wilkes"). By its charging lien, Gardner, Wilkes seeks from Plaintiff additional legal fees to be paid from the proceeds of the settlement reached in the underlying action. Gardner, Wilkes's claim for such additional fees is founded upon an alleged agreement by the Plaintiff to pay reasonable fees or, alternatively, under a theory of quantum meruit. Plaintiff filed a response in opposition (Doc. 214) which was amended (Doc. 215). An evidentiary hearing was conducted on July 16 and 17, 2001. In addition to numerous exhibits, the court has received additional legal arguments from counsel. See (Docs. 291, 292). While the charging lien claims no specific sum, Gardner, Wilkes sought a fee enhancement of $250,000.00 from the Plaintiff shortly after settlement was reached in this cause. As discussed below, its expert opined at the hearing that a reasonable fee under the circumstances of this case would be in the range of one million dollars. For the reasons set forth herein, I conclude that no such enhancement is due to counsel and that the charging lien should be discharged.

I.

Mr. Wilkes was lead trial counsel for Plaintiff, Gregory T. Flynn, M.D., in this action. The pertinent chronology is as follows. The suit was filed in 1997. The cause proceeded to jury trial in May 1999. On May 26, 1999, the jury awarded Plaintiff $8,650,000.00, exclusive of attorney's fees and costs. Judgment was entered on May 27, 1999. Among the post trial motions filed with this court was a claim by Plaintiff's trial counsel for attorney's fees pursuant to 42 U.S.C. § 1988 and costs pursuant to Rule 54 of the Federal Rules of Civil Procedure. See (Doc. 177).¹ The motion also sought to correct the judgment to allow time for Plaintiff to seek fees and costs. In a supplemental pleading, Plaintiff requested $956,425.00 in fees as against the defendant hospital. The sum was calculated upon a lodestar fee amount of $382,570.00 with a 2.5 multiplier and justified on the basis of the substantial nature of the verdict, the difficult circumstances involved in the representation, the significant delay in Plaintiff's payments to Gardner, Wilkes, and the complex nature of the case. See Affidavit of Mark Buell, Esq. (Doc. 202). The motion sought an additional $262,841.50 as an element of damages on the § 1983 claim for legal fees expended in the underlying administrative proceedings and resultant court proceedings, as well as an eviction action. Id. On June 17, 1999, the court directed the parties to mediate the matter of fees and costs.

On June 21, 1999, a Corrected Judgment was entered whereby the court reserved jurisdiction to consider entitlement to and the amount of fees and costs as well as any request for injunctive relief. (Doc. 180).

On August 4, 1999, the mediation was concluded with the parties agreeing to settle all outstanding disputes in exchange for the Defendant's payment of $6,500,000.00 to the Plaintiff. The parties agreed that the instant suit would be dismissed with prejudice and each party would bear its own fees and costs. See (Pl.'s Exh. 29).

Although Gardner, Wilkes had notified Dr. Flynn that it might seek additional fees over and above its hourly rate, no specific demand for such fees was made until August 13, 1999 when Gardner, Wilkes notified Plaintiff that it was seeking an additional $250,000.00 "write up" because of the favorable result. See (Pl.'s Exh. 19, Clmt.'s Exh. 70).

A partial satisfaction of judgment was filed with the court on September 7, 1999.

On October 12, 1999, Gardner, Wilkes filed the Notice of Charging Lien.

A final satisfaction of judgment was filed on January 7, 2000.

Other facts established by a preponderance of the evidence are as follows. Gardner, Wilkes first undertook to represent the Plaintiff in or about October 1994 in connection with efforts by the defendant hospital to suspend the doctor's medical privileges. On October 25, 1994, Gardner, Wilkes, through Mr. Wilkes, forwarded an engagement letter to the Plaintiff confirming the firm's fee arrangement for representation on that matter. In pertinent part the letter states:

For any and all services rendered, we will be paid a reasonable fee. This will be based on several factors, including our time, which means charges based upon an hourly rate for the attorney/paralegal performing a given service at the time of performance. This rate will vary from $110.00 to $220.00 per hour, depending upon the experience and level of seniority of the attorney or paralegal involved. These rates are subject to upward adjustment from time to time. We will, to the extent possible, use junior attorneys and paralegals to perform the work, limiting the participation of senior attorneys. I anticipate that I will be predominantly involved in the work on this file, and my current hourly billing rate in matters of this nature is $195.00 per hour.

See (Clmt.'s Exh. 3). Gardner, Wilkes thereafter represented Plaintiff on a number of legal matters. Over time, the hourly rates were increased. With the exception of an auto accident case, for which there was a contingency fee agreement, there were no other written agreements related to fees. Consistent with the letter of engagement, Gardner, Wilkes periodically billed the Plaintiff for its legal services. All of the billings, with the exception of the one contingency fee matter, sought fees calculated on the basis of an hourly rate for services performed. On occasion, Gardner, Wilkes made courtesy adjustments to its billings favorable to the Plaintiff. Payment and billing records reveal that Plaintiff, on occasion, fell behind in payment of his fees and at times, the amount owed was substantial. Shortly before the trial in this action, Mr. Wilkes threatened to withdraw from representation because of overdue fees and costs. In resolution of the fee dispute, Plaintiff and his wife agreed in April 1999 that any outstanding fees and costs could be taken from any settlement or judgment in this action. See (Clmt.'s Exh. 32). At about this time, Plaintiff asked Mr. Wilkes to assume the litigation on a contingency basis. Mr. Wilkes refused. In any event, Mr. Wilkes continued to represent the Plaintiff through trial and until he was dismissed on September 13, 1999.

Shortly after trial, Mr. Wilkes and Mr. Leon, together with Mark Buell, Esq., their fee expert, began discussions related to the Plaintiff seeking fees against the hospital pursuant to 42 U.S.C. § 1988. Mr. Buell inquired of the fee agreement. It was confirmed that no specific fee agreement had been entered between Plaintiff and counsel in regards to the section 1983 action. As a result, Mr. Wilkes sought to confirm with the Plaintiff that the fee agreement called for the payment of a "reasonable fee." This was left to Mr. Leon to determine, and he reported back to Mr. Wilkes and Mr. Buell that Plaintiff agreed that the fee was to be a reasonable fee. The evidence indicates that the discussion between Mr. Leon and the Plaintiff in this regard was solely in the context of their seeking fees against the hospital and not in relation to a claim for enhanced fees by counsel against the Plaintiff.

On August 4,...