Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A.

• Decision Date: 22 December 1987
• Docket Number: No. 86-2822,86-2822
• Citation: 13 Fla. L. Weekly 52,517 So.2d 88
• Parties: 13 Fla. L. Weekly 52 Bernard LITMAN, Appellant, v. FINE, JACOBSON, SCHWARTZ, NASH, BLOCK & ENGLAND, P.A., Appellee.
• Court: Florida District Court of Appeals

Page 88

517 So.2d 88

13 Fla. L. Weekly 52

Bernard LITMAN, Appellant, v. FINE, JACOBSON, SCHWARTZ, NASH, BLOCK & ENGLAND, P.A., Appellee.

No. 86-2822.

District Court of Appeal of Florida Third District.

Dec. 22, 1987.

Lapidus & Frankel and Richard L. Lapidus, Miami, for appellant.

Fine Jacobson Schwartz Nash Block & England and Arthur J. England, Jr. and Theodore Klein and Charles M. Auslander, Miami, for appellee.

Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

We affirm the final judgment entered for the law firm of Fine Jacobson Schwartz Nash Block & England, P.A. (Fine Jacobson). In so doing, we reject Litman's two contentions: that the attorneys were not entitled to a charging lien for fees for services rendered in their successful representation of him in the underlying case, and that he was deprived of a jury trial when the trial court determined that the attorneys were entitled to a judgment for fees.

I.

The antecedent to the present case is an earlier lawsuit in which the law firm of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A. (Podhurst Orseck) obtained for Bernard Litman a substantial money judgment in a breach of contract action. When Litman's brother, Seymour Litman, a lawyer, claimed $216,000 of the money judgment under a contract he allegedly had with Bernard to render legal services in the matter, Podhurst Orseck brought an interpleader action to determine the respective rights of Bernard and Seymour to the interpleaded fund. At this juncture Bernard engaged Fine Jacobson to represent him against Seymour.

The interpleader action resulted in another decision in Bernard's favor--a judgment that Seymour had no right to any portion of the fund. Perhaps overcome by the sweet smell of success, Bernard then refused to pay the balance of the attorney's fees claimed by Fine Jacobson, ¹ and Fine Jacobson moved for the imposition of a charging lien. ² Litman moved to dismiss on the grounds that, first, no charging lien exists in the absence of a contingent fee contract and, second, Fine Jacobson's efforts on Litman's behalf did not, as is required, produce a positive judgment for Litman, but merely preserved that which had been recovered by Litman's former attorneys. The trial court denied Litman's motion to dismiss, struck his separate request for a jury trial, conducted an evidentiary hearing, and entered a final judgment for Fine Jacobson. Litman appeals.

II.

Virtually every jurisdiction in the United States recognizes the right of an attorney to recover fees by imposing a lien on a judgment obtained by his efforts for his client. See Scott v. Kirtley, 113 Fla. 637, 152 So. 721 (1933); Note, Attorney and Client: Attorney's Charging Lien, 4 U.Fla.L.Rev. 58 (1951) [hereinafter Note]. Although Florida, unlike many American jurisdictions, has not codified this common law lien, its courts have long acknowledged the appropriateness of such a lien and the justification for allowing resolution by proceedings in equity:

"The law is settled in this jurisdiction that a litigant should not be permitted to walk away with his judgment and refuse to pay his attorney for securing it. It is further consistent with law that an attorney's lien in a case like this be enforced in the proceeding where it arose. The parties are before the court, the subject matter is there, and there is no reason whatsoever why they should be relegated to another forum to settle the controversy."

In re Warner's Estate, 160 Fla. 460, 464, 35 So.2d 296, 298-99 (1948) (citations omitted).

"A lawyer's compensation, like that of every man who labors, is his bread and butter. When his contract is completed he is entitled to his pay and should not be forced to a suit to collect it. Such controversies are to be avoided so far as compatible with self-respect and his right to reasonable compensation for his services. Litigation to recover a fee is very embarrassing and is never resorted to except in cases to prevent injustice, imposition or fraud. An attempt to evade payment of an attorney's fee comes in poor grace after the work is done, the results accomplished and there is no question of bona fides."

In re Barker's Estate, 75 So.2d 303, 304 (Fla.1954) (citation omitted).

More concisely, the charging lien is "an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit." Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla.1983).

A.

As Sinclair, Louis tells us, the requirements for the imposition of a charging lien are few and simple. There must be an agreement--written or oral, express or implied--between the attorney and the client that the attorney will proceed with the suit and that he will be paid for his services. The fees agreed upon may be based on a percentage of any monetary recovery, In re Barker's Estate, 75 So.2d 303, or may be contingent upon recovery, Forman v. Kennedy, 156 Fla. 219, 22 So.2d 890 (1945), or there may be no agreement as to the amount of the fee or its source, Scott v. Kirtley, 152 So. 721, in which case the court may determine a reasonable fee. See generally Note, 4 U.Fla.L.Rev. 58. Thus, contrary to Litman's first contention, it is not necessary that the agreement provide that the fees be paid from the recovery. Conroy v. Conroy, 392 So.2d 934 (Fla. 2d DCA 1980). ³

B.

It is not enough, however, to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement ⁴ for the client, since the lien will attach only to the tangible fruits of the services. Sinclair, Louis, 428 So.2d at 1385; Pasin v. Kroo, 412 So.2d 43 (Fla. 3d DCA 1982) (error to impose charging lien on money received by client from sale of condominium where attorney unsuccessfully defended client in suit for specific performance of condominium sale contract). And although it is said that a charging lien attaches to the judgment, see Note, 4 U.Fla.L.Rev. at 60, where there are no proceeds of the judgment, there is nothing to which a lien may, as a practical matter, attach. See Pasin v. Kroo, 412 So.2d 43 (lien may issue only if attorney has in fact recovered proceeds); Kucera v. Kucera, 330 So.2d 38 (Fla. 4th DCA 1976) (noting that money deposited by client with his attorney during pendency of dissolution action would not be proper subject of charging lien as not being proceeds of a judgment). ⁵

If, then, the attorney has obtained a favorable judgment or settlement for the client which results in what the law recognizes as proceeds, the attorney has merely to assert timely a claim of lien ⁶ in the case to become entitled to a determination by the court, sitting without a jury, of the amount of attorney's fees due. ⁷ Kozich v. Kozich, 501 So.2d 1386 (Fla. 4th DCA 1987). Finally, we reject Bernard Litman's contention that Fine Jacobson merely preserved that which had been recovered by Podhurst Orseck. Bernard Litman was not entitled to the interpleaded funds, even though they originated from the initial breach of contract action, until Seymour Litman's claim of entitlement was favorably resolved through the efforts of Fine Jacobson. Thus, Fine Jacobson produced for Bernard Litman a second positive judgment, against which their charging lien can be enforced.

III.

All of the requirements for the existence and enforcement of a charging lien having been met in the present case, the trial court correctly proceeded in equity to enter judgment on the lien for the attorneys.

Affirmed.

1 Pursuant to court order, Podhurst Orseck delivered to Fine Jacobson a check for approximately $242,000, payable to both Bernard Litman and Fine Jacobson. Litman, disputing the fees, refused to endorse the check. At Litman's request, Fine Jacobson returned the check to Podhurst Orseck, which then in accordance with an agreement between Litman and Fine Jacobson disbursed the undisputed amount of approximately $195,000 to Litman and retained the remainder in its trust account, to be released upon the joint direction of Litman and Fine Jacobson or by court order.

2 Fine Jacobson also asserted a retaining lien which Litman challenged on the ground that no retaining lien exists where the attorney is not in possession of the money. We think the law supports Litman's position.

While Fine Jacobson argues that its relinquishment of the check at Litman's request still left Fine Jacobson in constructive possession of the money, the fact that the property was no longer in Fine Jacobson's hands precludes a claim of a retaining lien. In this area, possession is not nine-tenths, but ten-tenths of the law. "The general or retaining lien is dependent upon possession, and does not attach to property which is not in the hands of the attorney. Its very name, 'retaining lien,' indicates that the property must be in the attorney's possession, or else he could not 'retain' it." In re Sebring, 238 A.D. 281, 285, 264 N.Y.S. 379, 385 (N.Y.App.Div.1933) (citations omitted); Kaplan v. Reuss, 113 A.D.2d 184, 495 N.Y.S.2d 404 (N.Y.App.Div.1985) (retaining lien applies only to papers and property in possession of attorney and is extinguished when possession terminates other than by court order), aff'd, 68 N.Y.2d 693, 506 N.Y.S.2d 304, 497 N.E.2d 671 (1986). Unlike the retaining lien, however, the charging lien is not dependent upon possession. Dowda & Fields, P.A. v. Cobb, 452 So.2d 1140, 1142 (Fla. 5th DCA 1984).

3 In Conroy, 392 So.2d at 937, the court held that

"in order for an attorney to obtain a charging lien upon a judgment which involves personal property, it is unnecessary for him to prove that there was an agreement with the client for the proceeds to be paid from the recovery. Of course, the attorney must prove that he had a valid contract with the client to render services but this can be satisfied by a...