Hanson v. Fowler, White, Burnett, P.A.

• Decision Date: 17 October 2012
• Docket Number: Nos. 3D11–805,3D10–1729,3D10–929.,s. 3D11–805
• Citation: 117 So.3d 1127
• Parties: Alden HANSON, Appellant, v. FOWLER, WHITE, BURNETT, P.A., a/k/a Fowler, White Burnett, Hurley, Brannock, Strickroot, P.A., Appellee.
• Court: Florida District Court of Appeals

117 So.3d 1127

Alden HANSON, Appellant,

v.FOWLER, WHITE, BURNETT, P.A., a/k/a Fowler, White Burnett, Hurley, Brannock, Strickroot, P.A., Appellee.

Nos. 3D11–805, 3D10–1729, 3D10–929.

District Court of Appeal of Florida, Third District.

Oct. 17, 2012.

Louis Arslanian, Hollywood, for appellant.

Gaebe, Mullen, Antonelli & DiMatteo, Michael A. Mullen and Elaine D. Walter, Coral Gables, for appellee.

Before WELLS, C.J., and SALTER, J., and SCHWARTZ, Senior Judge.

WELLS, Chief Judge.

Alden Hanson appeals from a final summary judgment in favor of his former lawyer and his law firm in this legal malpractice action. Because we agree that no basis exists to support his claim, we affirm the final judgment in their favor.¹

a. The parties' claims in federal court:

This action has its genesis in a federal lawsuit brought by Captain Mark Rose for imposition of a maritime lien against a vessel owned by Hanson, for foreclosure of that lien, and for damages against Hanson for fraud and unjust enrichment. According to Rose's complaint, Hanson promised Rose that if Rose served as captain of a vessel owned by Hanson, and made specified repairs to the vessel, Hanson would convey a controlling interest in the vessel to Rose. Rose further claimed that although he had served as captain and performed repairs to that vessel as agreed, Hanson had refused to reimburse him for the expenditures Rose had made in repairing the vessel and had disavowed his promise to convey a controlling interest in the vessel to Rose. Rose therefore sought an award of damages from Hanson for fraud and unjust enrichment and to impose a maritime lien against the vessel and to foreclose it:

21. The services, materials and repairs provided to the Vessel by Rose and through his direction give rise to a maritime lien against the Vessel pursuant to 46 U.S.C. s. 31342(a)(1)(1989).

22. Rose is entitled to foreclose that lien for non-payment.

Wherefore, Plaintiff asks this court to issue process in due form of law ... in causes of maritime and admiralty jurisdiction against the [vessel], her engines, tackle, appurtenances, etc., ... and that this Court order and adjudge that the Vessel be condemned and sold to pay Plaintiff's demand....

Although the parties negotiated six separate agreements, and actually signed five, Rose did not allege a breach of any of these contracts.²

Hanson answered the complaint, denying Rose's allegations and raising sixteen affirmative defenses including a waiver and a set-off defense. More particularly, Hanson claimed that Rose had contractually waived his right to a lien against the vessel and that he (Hanson) was contractually entitled to a set-off against all amounts claimed by virtue of Rose's breach of the parties' agreements:

36. The Second Amended Complaint fails to state a claim upon which relief may be granted and that [Rose] waived his right to a maritime lien against the vessel. By [sic] the execution of various contracts, releases or other documents in which he confirmed that he had no claim against the vessel.

....

44. The Claimant/Owner [Hanson] is entitled to a set-off for all amounts due and owing to him from [Rose] [ ]as a result of [Rose's] ... breach of contract....

Hanson also filed counterclaims seeking damages for, among other things, Rose's purported breach of the parties' Purchase and Sale and Bareboat Charter Agreements. Rose answered, but did not claim by way of affirmative defense or otherwise that Hanson had breached any of the parties' contracts.

b. Resolution by the United States District Court:

In December 1997, following trial in the United States District Court for the Southern District of Florida, final judgment was entered. That judgment dismissed all claims raised by both parties with the exception of a portion of Count I of Rose's claim for a maritime lien.

1. Hanson's breach of contract counterclaims:

In entering this judgment, the District Court first addressed Hanson's counterclaims for breach of contract. In doing so, the court considered not only the breach of contract claims against Rose actually alleged by Hanson, but also a defense not raised in the pleadings by Rose—that Rose could not be liable for breach because Hanson breached first by improperly removing him as captain of the vessel:

In Count I of his counterclaim, Hanson has alleged that Rose breached the June 1992 Purchase & Sales Agreement.

Rose has argued that he is not liable for any breach of the June 1992 Purchase & Sales Agreement because Hanson breached this agreement by removing Rose from the [vessel] during the Provincetown Whale Watch Venture.

Hanson has responded to this argument by pointing out that he had the right to remove Rose from the [vessel] by a majority vote pursuant to paragraph 10 of the Provincetown Joint Venture Agreement.

(Emphasis added).

Reading all three contracts executed by the parties on June 3, 1992 together, ³ the District Court concluded that while the June 3, 1992 Provincetown Joint Venture Agreement allowed Hanson to remove Rose as captain of his vessel (with the agreement of one other partner in the venture), the June 3, 1992 Purchase and Sale Agreement allowed Rose's removal only upon a determination of gross negligence. Because no gross negligence was either claimed or demonstrated, and because the Purchase and Sale Agreement stated that its terms governed over those of the other agreements executed that day, the District Court concluded that Hanson could not recover on his breach of contract counterclaims because it was he, not Rose, who had breached those contracts. Counts I and III of Hanson's counterclaim for damages for breach of contract were therefore dismissed.

2. Rose's claim for a maritime lien:

Having determined that Rose was not in breach of the parties' agreements, the District Court next decided Rose's entitlement to a maritime lien for wages and “necessaries.” While the court rejected Roses' claim for wages, it decided that because Hanson had breached the June 3, 1992 Purchase and Sale Agreement (by wrongfully terminating Rose for reasons other than gross negligence), Rose was entitled to recover for “necessaries” under the June 3, 1992 Purchase and Sale Agreement.⁴ This would, however, be subject to the provisions of paragraph 9 of that agreement, which expressly stated that in the event Hanson breached and the vessel was sold, Hanson would be entitled to the first $375,000 from its sale:

As mentioned above, the Court has found that Hanson breached the June 1992 Purchase & Sales Agreement. Under paragraph 9 of that agreement, Rose was entitled upon a default by Hanson, to make a claim against the [vessel] for work and or repairs which Rose performed to improve the [vessel]. These payments were to be made to Rose from a sale of the [vessel] after Hanson received the first $375,000 from that sale.

(Emphasis added).⁵

The District Court next determined that Rose was not entitled to recover the full amount of the lien he might otherwise claim under paragraph 9 of the Purchase and Sale Agreement, first because Rose had contractually waived his lien rights prior to May 1993 when he executed the 1993 Arcadian Agreement, and second because under the Arcadian Agreement Rose was entitled to compensation only if profits were recognized and none were:

This claim would have been valid had Rose not subsequently executed the Arcadian Operating Agreement. Under paragraph 4 of that agreement, Rose explicitly waived all claims against the [vessel up to the date that agreement was executed] and Hanson. In addition, in paragraph 3(b) of the Arcadian Agreement Rose agreed that any payments for work performed on the [vessel] would be paid from the profits of the Arcadian Whale Watching Venture.... No payment is due under this paragraph because the Arcadian Whale Watching Venture did not produce any profit.... Having waived all other claims against the [vessel] and Hanson, Rose cannot succeed on Count I of his complaint as to any maritime lien that arose before May 16, 1993.

Based on these findings, Rose was awarded a maritime lien in the amount of only $15,955.81 for expenditures made after May 16, 1993.

Finding no merit in any of the other claims raised by the parties, they were dismissed,⁶ and judgment was entered in the amount of only $15,955.81:

In light of the above, it is

ORDERED AND ADJUDGED as follows:

1. Counts I—III of the Verified Second Amended Complaint are hereby DISMISSED, except with respect to the portion of Count I that represents a lien for necessaries that arose on or after May 17, 1993.

Pursuant to this lien, Rose is entitled to a judgment in the amount of $15,955.81.

2. Counts I—IV of the Counterclaim are DISMISSED.

Rose appealed and Hanson cross appealed from this judgment.

c. “Re”-resolution by the 11th Circuit Court of Appeals:

On appeal, the United States Court of Appeals for the Eleventh Circuit addressed three issues, which it stated as follows:

(1) whether the district court erred in finding that Rose waived his maritime liens that accrued prior to May 16, 1993 (“waiver issue”);

(2) whether Hanson is entitled to the first $375,000.00 from the sale of the [vessel] pursuant to the June 3, 1992 purchase agreement (“sale issue”); and

(3) whether the district court erred in awarding $15,955.81 for a maritime lien that arose after May 16, 1993 (“damages issue”).

Rose v. M/V “Gulf Stream Falcon,” 186 F.3d 1345, 1348 (11th Cir.1999).

The Eleventh Circuit resolved only the first of these issues. With regard to that issue, the court concluded that the 1993 Arcadian Agreement did not waive Rose's right to secure a lien for services predating that agreement as the District Court concluded. Rose, 186 F.3d at 1351 (“In sum, we see nothing in the language of [the Arcadian Agreement] which suggests that Rose waived his maritime lien on the [vessel]. Accordingly, we conclude that the district court erred in finding waiver.”). The Circuit Court refused to consider Rose's second...