Perez v. George, Hartz, Lundeen, Flagg & Fulmer
| Citation | 662 So.2d 361 |
| Decision Date | 21 June 1995 |
| Docket Number | No. 94-1048,94-1048 |
| Parties | 20 Fla. L. Weekly D1437 Ramiro PEREZ, Individually and as Co-Personal Representative of the Estate of Lillian Perez, Appellant, v. GEORGE, HARTZ, LUNDEEN, FLAGG & FULMER, Appellee. |
| Court | Florida District Court of Appeals |
Roger A. Bridges, Coral Gables, for appellant.
George, Hartz, Lundeen, Flagg & Fulmer, Charles George and Esther E. Galicia, Coral Gables, for appellee.
Before SCHWARTZ, C.J., and JORGENSON and GREEN, JJ.
Ramiro Perez ("Perez") and appellee George, Hartz, Lundeen, Flagg & Fulmer ("George, Hartz") both moved for final summary judgment for an award of attorneys' fees with the probate court below. This is an appeal from the court's order granting final summary judgment and awarding the law firm of George, Hartz $166,666.00 in legal fees for services rendered in obtaining a $500,000.00 settlement for Lidia Moreno ("Moreno") and Perez, the surviving parents of Lillian Perez, deceased minor, and denying Perez's motion for summary judgment for fees. For the reasons which follow, we reverse in part the order under review insofar as it permits George, Hartz to recover any attorneys' fees from Perez and affirm the denial of attorneys' fees to counsel for Perez pursuant to their contingency fee agreement.
Lillian Perez was killed in an automobile accident on December 19, 1991, when the Nissan 300ZX in which she was a passenger burst into flames upon impact with another car. The driver of the Nissan and two other passengers, all minors, were also killed. At the time of this accident and at all times material hereto, Lillian's parents, Moreno and Perez were divorced from each other.
After the accident, Lillian's father (Perez) retained an attorney, Lawrence Allen ("Allen") to represent him in an action against Nissan. Perez's retainer agreement with Allen, dated December 21, 1991, provided, among other things, that Allen would receive as compensation for his services 33 1/3% of any recovery up to one million dollars through the time of filing of an answer or the demand for appointment of arbitration.
Lillian's mother, Moreno, retained the George, Hartz firm to represent her individually in a wrongful death action against Nissan Motors. On January 6, 1992, Moreno signed a written contingency fee agreement with the George, Hartz firm which provided, inter alia, that the firm would receive as compensation for its services, 33 1/3% of any recovery up to one million dollars prior to the filing of the lawsuit. 1
According to Allen, the George, Hartz firm contacted him and offered to share responsibilities for the investigation, development and litigation costs of the case, but that after this initial contact, he was unsuccessful in obtaining information or in meeting with anyone from the firm. George, Hartz, on the other hand, contends that Allen was invited to a meeting on January 21, 1992, of all plaintiffs' counsel, as well as a meeting with the medical examiner's office, but that Allen did not attend the meetings nor did he contact the firm to inquire about the status of the case until February 19, 1993. George, Hartz admits that it did not respond to this written inquiry by Allen due to Allen's apparent lack of activity and interest in the case as evidenced by Allen's failure to:
1) hire an investigator;
2) photograph the scene or vehicles involved in the accident;
3) inspect the vehicles;
4) contact or interview the witnesses, police officer or medical examiner;
5) research whether the Nissan 300ZX had been the subject of a crashworthy test;
6) put Nissan on notice of his representation;
7) call or retain experts;
8) move to preserve the vehicle as evidence; or
9) review industry standards.
Pre-suit mediation between Nissan Motors and all of the plaintiffs' attorneys except Allen began on March 19, 1993. 2 Nissan initially offered $325,000 per family. This amount was not accepted. George, Hartz told Moreno that it would settle for any offer in excess of $325,000 and that any settlement would be subject to attorneys' fees and the claims of Perez as Lillian's surviving father. Settlement negotiations reconvened on May 5, 1993, again without Allen. Nissan offered $500,000 to each family, which was accepted.
Thereafter, an associate of George, Hartz contacted Allen to ask for a waiver from Perez so that an estate could be set up for Lillian naming Moreno as the sole personal representative. Charles George later faxed a letter to Allen stating that the firm had settled the case on behalf of both parents and that the firm was entitled to a fee from Perez because it was the procuring cause of the settlement. The letter also indicated that the firm would ask for a one-third contingency fee on the entire $500,000 settlement. Allen refused the waiver and disputed George, Hartz' claims for attorneys' fees from Perez.
On May 6, 1993, George, Hartz filed a petition in the probate division for administration of Lillian's estate and sought to name Moreno as personal representative. Moreno also filed a petition asking the court to approve the settlement and to allow the payment of attorneys' fees to George, Hartz. The court appointed both Moreno and Perez as co-personal representatives.
At a subsequent evidentiary hearing, Perez agreed to the amount of the settlement with Nissan Motors and also agreed that a contingency fee of one-third of the $500,000 settlement amount (i.e., $166,666) as attorneys' fees was reasonable. The parties agreed to argue the issue of entitlement to the attorneys' fee award at a later time. Thereupon, the proceeds, minus attorneys' fees, were equally distributed to Moreno and Perez.
Both parties thereafter moved for final summary judgment for an attorneys' fee award. Perez argued that George, Hartz was entitled to only $83,333 or 33 1/3% of the recovery made by Moreno. Moreno argued that George, Hartz was entitled to the full $166,666 as the procuring cause of the settlement. After hearing the arguments of counsel and reviewing the pleadings and transcripts of prior proceedings, the court granted Moreno's motion for summary judgment and awarded George, Hartz the entire $166,666.00 as attorneys' fees. Finding no controlling rule of the Florida Bar, or caselaw, the court awarded the fees on the basis of section 768.26, Florida Statutes (1993). 3
Contrary to the trial court's ruling, we find that there is a Florida Bar rule which directly controls this case. R. Regulating Fla. Bar 4-1.5(f)(2) is very specific in its requirement for a signed contract between a client and attorney or law firm when a fee is contingent:
Every lawyer who accepts a retainer or enters into an agreement, express or...
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