Forman v. Kennedy

• Decision Date: 24 July 1945
• Citation: 156 Fla. 219,22 So.2d 890
• Parties: FORMAN et al. v. KENNEDY.
• Court: Florida Supreme Court

22 So.2d 890

156 Fla. 219

FORMAN et al. v. KENNEDY.

Florida Supreme Court

July 24, 1945

Appeal from Circuit Court, Broward County; George W. Tedder judge.

Maxwell Baxter, of Fort Lauderdale, for appellants.

John Kennedy, in pro. per., and Louis F. Maire, of Fort Lauderdale, for appellee.

BUFORD, Justice.

By this appeal we are required to review a final decree entered in a suit in which an attorney sought to enforce a lien for agreed attorney's fees as against a fund which had been recovered pursuant to a compromise settlement of the judgment recovered by the attorney.

The compromise settlement was negotiated and made over the protest of the attorney and after notice to client that in case of such compromise settlement he would demand payment of his full agreed contingent fee based upon the amount of the judgment which had been recovered by him.

The Chancellor on issues joined and testimony submitted made, in the final decree, specific findings of fact to which he applied applicable law and entered judgment in favor of the plaintiff attorney. In entering the decree the learned Chancellor said inter alia:

'The only question necessary to be adjudicated in this proceeding is whether or not the measure of compensation of the attorney for services rendered under the contract should be based on the amount of the judgment entered or upon the amount paid to the District by reason of the compromise settlement between the said District and its judgment debtor.

"By the weight of authority, where an attorney is employed on a contingent fee consisting of a percentage of the amount recovered, the amount for which the case is settled is the basis on which the attorney's percentage is to be computed, * * *. There are, however, decisions to the effect that when an attorney contracts for a contingent fee to depend upon the result of the suit,and the client compromises such suit without the consent of the attorney, the latter will be entitled to recover the whole amount of the fee in like manner as if the contingency had transpired upon which the payment of the fee was made to depend. This rule has, however, been sometimes limited to cases where the evidence fails to show what would have been the result of the litigation had the compromise not been made, it being deemed unreasonable to hold that an attorney should receive compensation on the basis of a successful termination of the suit, where the evidence affirmatively shows that such would not have been the result.' 5 Am.Jur. 383-384, and the cases cited in the footnotes thereto. (Italics supplied.)

'It is the settled law in this State that an attorney contracting foa a portion of the recovery is entitled to a lien on the judgment. Alyea v. Hampton, 112 Fla. 61, 150 So 242; Scott v. Kirtley, 113 Fla. 637, 152 So. 721, 93 A.L.R. 661. The above cases are also authority for the holding that a contract between an attorney and client for payment of the attorney out of the judgment recovered operates as a equitable assignment of the fund pro tanto and creates a lien on the specific fund. In the case of Webster v. Sweat, 5 Cir., 65 F.2d 109, 110, it was held in an opinion by Judge Bryan that:

"An attorney also has a special or charging lien which entitles him to have his fee in any particular case paid out of the judgment which he recovers. He is considered as assignee of the judgment to the extent of his fee.' (Citing cases.)

'Also see Higley v. White, 102 Ala. 604, 15 So. 141; Knabb v. Mabry, 137 Fla. 530, 188 So. 586; Mabry v. Knabb, 151 Fla. 432, 10 So.2d 330; Miller v. Scobie, 152 Fla. 328, 11 So.2d 892; Cooper v. McNair, D.C., 49 F.2d 778; Graeber v. McMullin, 10 Cir., 56 F.2d 497; Chancey v. Bauer, 5 Cir., 97 F.2d 293; In re McCormick's Estate, 14 N.J.Misc. 73, 182 A. 485.

'It has also been held that where the attorney has a contract for a definite fee and has substantially...