Pendley v. Shands Teaching Hosp. and Clinics, Inc.

• Citation: 16 Fla. L. Weekly 929,577 So.2d 642
• Decision Date: 27 March 1991
• Docket Number: No. 90-00367,90-00367
• Parties: 16 Fla. L. Weekly 929 Delmar W. PENDLEY, as Personal Representative of the Estate of Audrey Lee Pendley, deceased, Appellant, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., Appellee, and David M. Anderson, Cross-Appellee.
• Court: Court of Appeal of Florida (US)

Page 642

577 So.2d 642

16 Fla. L. Weekly 929

Delmar W. PENDLEY, as Personal Representative of the Estate of Audrey Lee Pendley, deceased, Appellant, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., Appellee and David M. Anderson, Cross-Appellee.

No. 90-00367.

District Court of Appeal of Florida First District.

March 27, 1991.

Rehearing Denied May 3, 1991.

Craig F. Hall of Hall & Hall, P.A., Gainesville, and William C. Gentry and P. Scott Russell, IV, of Gentry and Phillips, P.A., Jacksonville, for appellant.

Timothy W. Volpe of Smith & Hulsey, Jacksonville, for appellee.

David M. Anderson, cross-appellee, pro se, Gainesville.

BOOTH, Judge.

This cause is before us on appeal from a final judgment awarding attorney fees to a successful medical malpractice plaintiff and a final judgment taxing costs in favor of a discharged attorney. Plaintiff/appellant argues that the trial court erred: (1) in limiting its award of attorney fees to 40 percent of the damages awarded by the jury; and (2) in awarding certain costs to plaintiff's former counsel. We affirm the second issue without discussion and, consequently, turn to the first.

Pursuant to jury verdict, appellant was awarded damages in the amount of $594,200. After trial, appellant moved for an award of attorney fees under § 768.56, Fla.Stat. (1983), which provides for an award of reasonable fees to the prevailing party in a medical malpractice action. The trial court found that $378,097.50 would be a reasonable fee, and appellee does not contend that this finding is unsupported by the evidence. ¹ The trial court, however, found that under the agreement between appellant and counsel, the award of attorney fees should be limited to 40 percent of the damage verdict and, accordingly, awarded $237,680.

The fee agreement originally provided that any court-awarded attorney fees would be added to the damage verdict and that appellant's counsel would receive 40 percent of the resulting sum. During the hearing on appellant's motion for fees, the trial court expressed concern about the propriety of this agreement, suggesting that the agreement could operate to allow the client to receive part of the fee awarded by the court if this fee was high in relation to the damage verdict. In response, appellant and his counsel executed an addendum to the agreement, which provided in pertinent part:

1. In the event that the trial court should determine that an award of reasonable attorneys' fees to plaintiff ... can only inure to the benefit of plaintiff's counsel, the undersigned client and counsel hereby agree that any reasonable fee determined by the court ... shall be paid to plaintiff's attorneys and shall not be aggregated with the verdict....

2. To the extent the fee awarded by the court ... exceeds 40% of the verdict ... then such fee shall be our attorneys' fee....

3. In the event any court-awarded reasonable fee ... is less than the percentage of the verdict stated in paragraph 2 above, then our attorneys shall be entitled to an attorneys' fee based upon the above-stated percentage of the verdict, and the fee awarded by the court will be applied to such fee so as to reduce the amount of attorneys' fee paid by client....

The trial court accepted the addendum into evidence but found that the fee should be limited to 40 percent of the damage verdict despite any language in the contract and addendum to the contrary.

We need not discuss the legal effect of the agreement in its original form because the...