Phillips v. Nationwide Mut. Ins. Co., 77-261
| Decision Date | 29 June 1977 |
| Docket Number | No. 77-261,77-261 |
| Citation | 347 So.2d 465 |
| Parties | Jenny PHILLIPS, a minor, by and through her father and next friend, Verldon Phillips and Verldon Phillips, Individually, Plaintiffs, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Victoria Brickler and Ethel Evans, Defendants. |
| Court | Florida District Court of Appeals |
David A. Maney, Gordon & Maney, Tampa, for plaintiffs.
Thomas J. Ellwanger, Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for defendants.
The Circuit Court for the Thirteenth Judicial Circuit has certified the following question to this court pursuant to Fla.App. Rule 4.6(a):
IS THE CONTINGENT FEE AGREEMENT BINDING ON THE MINOR CHILD OR IS IT THE DUTY OF THE COURT TO SET A REASONABLE ATTORNEY'S FEE FOR SERVICES RENDERED TO THE MINOR CHILD WITHOUT REGARD TO THE CONTINGENCY AGREEMENT?
In certifying the question to this court, the trial judge set forth the facts as follows:
This personal injury action was settled by the parties before trial. The action was brought by the plaintiff-father and next friend of the injured minor child. The only remaining matter pending before the Court is a petition for approval of settlement of the minor's claim and the petition also seeks Court approval of an attorney's fee for services rendered to the minor child in an amount equal to 40% of the gross recovery, 1 and this claim for attorney's fee is based upon a contingent fee agreement between the father of the minor child and the attorney. . . .
The minor child was not a party to the contingent fee agreement and there has been no prior Court approval of the contingent fee agreement with respect to the minor. The gross amount of the proposed settlement for the minor child is $4,500.00 and consequently it is not necessary under the statute 2 to require the appointment of a guardian.
The Court believes that the question certified is one without any controlling precedent in the State of Florida. The Court's own research indicates little harmony in the decisions of foreign jurisdictions passing on the question.
It appears that an answer to the certified question will facilitate the proper disposition of this cause, and therefore the question is one we should answer. Fla.App. Rule 4.6(a).
The circuit court has the inherent jurisdiction and right to protect minors and their property. Thus, the trial court's authority is sufficiently broad to determine whether a contract on behalf of a minor for payment of legal fees is reasonable. 3
The next friend of a minor has power to act on that minor's behalf and, where necessary, to conduct litigation to enforce the claims of a ward. Garner v. Schilling, 128 Fla. 353, 174 So. 837 (Fla.1937). When a next friend or guardian seeks recovery for damages resulting from personal injuries to a minor, it is frequently both desirable and advantageous to employ an attorney under a contingent fee contract. Contingent fee arrangements in cases of this type, where reasonable, are recognized under Fla. Bar Code Prof.Resp., E.C. 2-20. Reasonable contingent fee contracts have been upheld by our Supreme Court. Cone v. Benjamin, 157 Fla. 800, 27 So.2d 90 (1946). 4
Accordingly, a contingent fee arrangement entered into on behalf of a minor will be binding on the minor if the trial court determines: 1) that it was reasonably necessary to employ an attorney on behalf of the minor; and 2) that the contract by which the attorney was employed was fair and reasonable at the time it was entered into.
Here, a minor was injured in an accident. The...
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