Milton Kelner, P. A. v. 610 Lincoln Road, Inc.
| Decision Date | 11 February 1976 |
| Docket Number | No. 45598,45598 |
| Citation | 328 So.2d 193 |
| Parties | MILTON KELNER, P.A., a Professional Association, Petitioner, v. 610 LINCOLN ROAD, INC., d/b/a A. Taylor & Sons, a Florida Corporation, Respondent. |
| Court | Florida Supreme Court |
Milton Kelner, Miami, in pro per.
Normal F. Solomon, Miami, for respondent.
This cause concerns the method for payment of an attorney employed on a contingency fee contract when he has been discharged without cause.
The Third District Court of Appeal, in its decision in this cause reported at 289 So.2d 12, has certified the following question to us as one of great public interest:
'Whether or not an attorney, discharged without cause by the client when he was to be compensated on a percentage rate upon the happening of a contingency, should be entitled to recover under the terms of the contract or be limited to a quantum meruit recovery?'
We granted certiorari because the issue is one of first impression and is important both to the bar and to the public. We have jurisdiction. 1 Regrettably, the factual situation in the instant case is unique and the question cannot, therefore, be fully answered.
The facts, using the words attorney and client for petitioner and respondent respectively, are as follows.
The client's jewelry store was robbed of approximately $350,000.00 worth of jewelry, of which $150,000.00 was jewelry held on consignment by the client. The loss was covered by an insurance policy issued by Lloyd's of London in the amount of $100,000.00. A private adjuster was initially employed by the client to process the claim with Lloyd's and to effect a settlement of the consignors' claims. The client contended that a settlement was tentatively
effected by the adjuster with the consignors whereby they were to receive 60% Of the face amount of the policy and the client was to receive 39%, there being a one percent deductibility clause. At trial the consignors' attorneys disputed any agreement to accept 60% Of the insurance proceeds at this point in the negotiations. Lloyd's however, rejected the client's claim, contending the client's records and proofs of loss did not comply with the provisions of the policy. As a result, the client employed the petitioner-attorney on a 40% Contingent fee contract which reads as follows:
AUTHORITY TO REPRESENT
'I, the undersigned client, do hereby retain and employ
MILTON KELNER, P.A.
416 Biscayne Building
19 West Flagler Street
as my attorney, to represent me in my claim against certain underwriters at Lloyd's London, pursuant to Certificates #T8845A and T8845B for the sum of One Hundred Thousand Dollars ($100,000.00) resulting from a theft and burglary that occurred on the 8/9th day of May, 1971.
'I agree to pay all costs of handling including court costs, accountant's fees, travel expenses, etc. As compensation for their services, I agree to pay my said attorneys from the proceeds of recovery the following fees:
40% Of all sums recovered whether by way of settlement, Arbitration or lawsuit
50% If an appeal is taken from the lower court by either side, or if garnishment or any proceeding after judgment has to be brought to collect the judgment or any portion thereof, or if suit is brought after an Arbitration award.
'It is understood and agreed that this employment is upon a contingent fee basis, and if no recovery is made, I will not be indebted to my said attorney for any sum whatsoever as attorney's fees.
'I hereby give my said attorney the exclusive right to take all legal steps to enforce my claim, and I agree not to settle this claim in any manner without the written consent of my attorney.
'DATED this 16 day of September, 1971.
610 Lincoln Road, Inc. d/b/a
A. Taylor & Sons
By /s/ Abe Taylor
'The above employment is hereby accepted upon the terms stated therein.
/s/ Milton Kelner
MILTON KELNER, P.A.'
The attorney received a $1,000.00 cost deposit. He was also subsequently hired to defend three consignors' suits and received a $750.00 retainer fee for each, or a total of $2,250.00.
The attorney filed suit on behalf of the client against Lloyd's, which before trial agreed to pay the face amount of the policy. The consignors then agreed to accept $60,000.00 for their claims as assessed in their suits. Based thereon, the attorney tendered the settlement along with a final accounting, which specified that the consignors would receive $60,000.00, the attorney would receive $40,000.00, and the client would receive a refund of $3,250.00 representing the cost deposit and retainer fees for the consignor actions. The $1,000.00 deductibility provision in the policy apparently was overlooked in this accounting.
The client rejected this settlement. The record reflects from the testimony before the jury by the petitioner-attorney that the client had demanded 20% Under the table without the knowledge of the consignors. It was unrefuted that the client had taken the position that 'If I don't get anything, no one gets anything.' The client discharged the attorney and employed a substitute attorney who bettered the consignors' settlement by $9,000.00.
The petitioner-attorney brought this action in the circuit court on the contingency contract. The trial court ruled that this was a valid contract, it was not unconscionable, and there was no overreaching, which holding was affirmed by the District Court.
The real issue concerned the computation of the percentage fee. It was the client's contention that the contingency contract required him to pay 40% Of $39,000.00 rather than 40% Of $100,000.00, as contended by the petitioner-attorney. That issue was submitted to the jury, which resolved the dispute in favor of the attorney.
The following factual and legal conclusions are clearly established in the record: (a) Both the trial court and the District Court found the...
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