Perez v. George, Hartz, Lundeen, Flagg & Fulmer, No. 94-1048

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Before SCHWARTZ; PER CURIAM
• Citation: 662 So.2d 361
• 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.
• Decision Date: 21 June 1995
• Docket Number: No. 94-1048

Page 361

662 So.2d 361 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. No. 94-1048. District Court of Appeal of Florida,
Third District. June 21, 1995.
Rehearing Denied Aug. 2, 1995.

Page 362

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.

PER CURIAM.

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.

Page 363

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...