Franklin & Marbin, P.A. v. Mascola

• Decision Date: 18 March 1998
• Docket Number: No. 97-0091,97-0091
• Parties: 23 Fla. L. Weekly D1168, 23 Fla. L. Weekly D744 FRANKLIN & MARBIN, P.A., Appellant, v. Kim Lasky MASCOLA, Appellee.
• Court: Florida District Court of Appeals

Page 46

711 So.2d 46

23 Fla. L. Weekly D1168, 23 Fla. L. Weekly D744

FRANKLIN & MARBIN, P.A., Appellant, v. Kim Lasky MASCOLA, Appellee.

No. 97-0091.

District Court of Appeal of Florida,

Fourth District.

March 18, 1998.

Order Clarifying Decision

May 13, 1998.

Catherine J. Maclvor and Barry S. Franklin of Franklin & Marbin, P.A., North Miami Beach, for appellant.

Steven H. Naturman of Naturman & Joblove, P.A., Miami, for appellee.

FARMER, Judge.

A discharged lawyer sued his former client for fees under their contract of representation and now appeals the trial court's award of a reasonable fee for the legal services rendered. This case raises important questions as to the rights and liabilities of an attorney and client under a fee contract. The issues involve the method for determining the client's fee responsibility directly to her own lawyer. We reverse.

The client retained the attorney to represent her in a pending paternity action after having discharged her previous counsel. Actually she initially approached the attorney to represent her in connection with a personal injury action against the family of the putative father, and in the course of their discussions retained him for both matters. Although she agreed to a standard contingency contract in the personal injury matter, she agreed to the following provision for fees in the paternity case:

"You agree to pay our firm ... a reasonable attorney's fee against which we will bill you in accordance with our established hourly rates fixed as follows: $275 per hour for BARRY S. FRANKLIN, $225 per hour for CINDY D. SACKRIN, and between $150--$175 per hour for other attorneys of the firm. Paralegal and law clerk time will be billed at the rate of $75 per hour. You will be charged for all attorney time expended in connection with your file, including conferences, telephone calls, discovery, trial preparation, drafting documents, negotiations, research, court time and travel time." ¹ [emphasis supplied]

In another provision, the client agreed:

"YOU AGREE TO CAREFULLY READ ALL BILLING STATEMENTS

AND PROMPTLY NOTIFY US, IN WRITING, OF ANY CLAIMED ERRORS OR DISCREPANCIES, WITHIN FIFTEEN (15) DAYS FROM DATE OF STATEMENT. IF WE DO NOT HEAR FROM YOU IN WRITING, IT IS PRESUMED THAT YOU AGREE WITH THE CORRECTNESS, ACCURACY AND FAIRNESS OF THE BILLING STATEMENT." [e.o.]

She stated no objection to the monthly statements rendered by the firm during the representation, explaining that she did not bother reading them.

After representing her for approximately nine months, the firm moved for leave to withdraw in the paternity action, citing irreconcilable differences. It also filed a notice of charging lien. At the time of the firm's withdrawal, there had been no conclusion to the paternity matter, no final award of support and expenses.

These fee proceedings began after the withdrawal of the attorney. The firm contended that she had frustrated its attempts to have the court award an interim attorney's fee from the putative father under the statute. ² It filed a motion in the pending paternity action "for entry of final judgment" relating to its claim of lien and the amount of its fee. The motion stated that the firm had rendered statements to the client during its representation totaling $19,561 and claimed prejudgment interest at 12% per annum. The motion closed with a demand for a money judgment against the client for the fees billed.

The evidence offered by the law firm at the final hearing comprised the fee contract, the statements rendered by the firm on a monthly basis, the testimony of Barry Franklin as to the work his firm had performed and other related circumstances, and the testimony of an expert attorney as to the reasonableness of the hourly rates billed and the hours performed. While the client testified on her own behalf, she offered no rebuttal expert evidence as to the reasonability of the hourly rates or hours billed.

Without finding the fee excessive, the trial judge reduced the hourly rates to a reasonable amount, and then similarly reduced the hours billed to what the court determined was a reasonable number. The firm's unobjected, billed fee of $19,561 was reduced to $6,800. The court explained:

"The basic problem with this case appears to be that the parties are embroiled in animosity concerning issues that are unrelated to the paternity/child support case.... The [claimed] attorneys' fees in this case are out of proportion with the cause of action and the results that could possibly be obtained in the action."

It is this judgment that we review today.

On appeal, the firm's basic contention is that "a deal is a deal." First party disputes between an attorney and client over how much is due under the kind of fee contract presented here, the firm contends, are governed solely by the fee contract itself. In a judicial proceeding between the lawyer and the client, the amount due under the contract is not determined according to the factors used by courts in setting a reasonable fee to be paid by the opposing party under a prevailing party fee provision in a contract or statute. In other words, the firm argues, the kind of fee contract at issue here is not subject to later judicial analysis as to whether the hourly rate or numbers of hours are reasonable, as it would for a third party payor. If the services relate to the contract matter and if they were billed to the client who did not object to them then, according to the firm, the client owes the full amount of the bill.

When someone other than the client is required by an agreement or a statute to pay the other party's attorney's fees, Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), and Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990), require that the trial court award The cases dealing with client liability under a contract for fees appear to arise in three circumstances. First, the client may discharge the attorney before the attorney can fully perform the contract of representation calling for either a fixed or a contingent fee, and the lawyer then seeks to be paid. Second, the attorney may fully perform the contract of representation after which the lawyer seeks the agreed compensation. Third, the lawyer may withdraw without fault of the client before full performance and later demand payment. In this case, the lawyer contends that the client interfered with the attorney's attempts to compel payment of fees under the paternity statute, and thus the attorney was forced to withdraw. At bottom the firm here claims that it was effectively discharged by the client.

only a reasonable fee. Under Rowe, ³ the trial court determines a reasonable fee from testimony by expert witness lawyers as to the prevailing rates for attorneys in comparable circumstances and as to the amount of time reasonably expended by the attorney for the party seeking payment. In contrast, this case deals with the client's obligation for fees directly to the client's own lawyer.

Formerly the supreme court had held in Goodkind v. Wolkowsky, 132 Fla. 63, 180 So. 538, 542 (1938), that:

"the discharge of an attorney, without cause, employed for a specified purpose and for a definite fee, after there has been substantial performance on the part of the attorney, is a breach of the contract for which an action for damages will lie against the client for the fee agreed upon." [emphasis supplied]

In Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982), however, the court receded from Goodkind and adopted a rule that:

"an attorney employed under a valid contract who is discharged without cause before the contingency has occurred or before the client's matters have concluded can recover only the reasonable value of his services rendered prior to discharge, limited by the maximum contract fee."

409 So.2d at 1021. In announcing this rule, the court explicitly stated that it applied to fixed fee and contingency fee contracts:

"It is our opinion that it is in the best interest of clients and the legal profession as a whole that we adopt the modified quantum meruit rule which limits recovery to the maximum amount of the contract fee in all premature discharge cases involving both fixed and contingency employment contracts." [emphasis supplied]

409 So.2d at 1021. ⁴

In the third circumstance--where the attorney withdraws from further representation without fault by the client and before full performance--this court confronted the client's fee obligation in Searcy Denney Scarola Barnhart & Shipley, P.A. v. Scheller, 629 So.2d 947 (Fla. 4th DCA 1993). We there held that the client may be obligated for quantum meruit not to exceed the contract fee, the amount of which could be reduced by any damages caused by the lawyer's refusal to perform, and even ultimately by an entire forfeiture of the fee. The present case does not involve the circumstance we faced in Scheller.

Thus, to sum up the three circumstances confronted by these cases and the fee We note that in applying Rosenberg the measurement of quantum meruit proved quite contentious. Some courts held that the Rowe method should be used to determine quantum meruit for discharged lawyers. Rood v. McMakin, 538 So.2d 125 (Fla. 2d DCA 1989); Riesgo v. Weinstein, 523 So.2d 752 (Fla. 2d DCA 1988); Barton v. McGovern, 504 So.2d 457 (Fla. 1st DCA 1987) (in fixing quantum meruit recovery to be awarded attorney discharged without cause before conclusion of case court must use Rowe criteria); Boyette v. Martha White Foods, Inc., 528 So.2d 539 (Fla. 1st DCA), review denied, 538 So.2d 1255 (Fla.1988) (Rowe method, without contingency risk multiplier, should be applied to determine discharged attorney's quantum meruit recovery).

obligations of the client, they are as follows: (1) where under a fixed fee or contingency contract the client discharges the lawyer who is without fault before full performance of the contract, under Rosenberg the client is...