Restivo v. Anderson & Anderson, P.A., s. 81-2222
| Decision Date | 25 July 1984 |
| Docket Number | Nos. 81-2222,82-1670,s. 81-2222 |
| Court | Florida District Court of Appeals |
| Parties | Debra Sue RESTIVO, Appellant, v. ANDERSON & ANDERSON, P.A., etc., et al., Appellees. ANDERSON & ANDERSON, P.A., and Carol Anderson, Appellants, v. Debra Sue RESTIVO, Appellee. |
Robert D. Peltz of Rossman & Baumberger, P.A., Miami, for Debra Sue restivo.
D. Culver Smith III and James A. Farrell of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for Anderson & Anderson, P.A. and Carol M. Anderson.
These are consolidated appeals involving a dispute between lawyers and their client as to the disbursement of proceeds of a settlement of the client's personal injury claim under the terms of a contingency fee agreement. Restivo claims error in the striking of her claim for conversion and the Andersons claim error in the entry of summary judgment against them on their claim for fees under the contingency fee agreement.
Upon review of appellant Restivo's allegations we conclude that the trial court erred in striking her claim for conversion. We find that she stated a cause of action for conversion in alleging that her lawyers wrongfully withheld funds to which Restivo was lawfully entitled. Restivo alleged that the lawyers received the proceeds of a settlement and withheld all of the proceeds of the settlement while demanding that Restivo agree to the attorneys' claim as how their fee was to be computed as a condition to releasing any of the funds. Restivo asserts that she was immediately entitled to at least that portion of the settlement proceeds that would be due her even if the attorneys' claim was valid. We agree. We reject the attorneys' claim that they were entitled to withhold all of the proceeds until their fee claim was resolved. For that reason we reverse and remand for further proceedings in Case No. 81-2222.
In Case No. 82-1670 we find no error by the trial court in granting a partial summary judgment for Restivo on her claim that the lawyers breached the contract of employment by withholding a sum for their fee based on a percentage of the court judgment rendered in the case rather than the settlement proceeds. 1 In granting summary judgment the trial court construed the words "recovery" and "total recovery" in the contingency fee agreement to mean the amount of funds actually recovered by settlement, after a larger sum was awarded at trial and the case was settled to avoid the risks of further proceedings by motion or appeal. The attorneys contend that their fee should be predicated upon the amount of the court award rather than the actual settlement.
Both parties rely on the case of Forman v. Kennedy, 156 Fla. 219, 22 So.2d 890 (1945), wherein a recovery for a lawyer based upon a percentage of the court judgment rather than a subsequent settlement was affirmed. Although the specific language of the employment contract was not quoted, the following language from the trial court judgment was approved:
By the weight of authority, where an attorney is employed on a contigent fee consisting of a percentage of the amount recovered, the amount for which the case is settled is the basis on which the attorney's percentage is to be computed, * * *. There are, however, decisions to the effect that when an attorney contracts for a contingent fee to depend upon the result of the suit, and the client compromises such suit without the consent of the attorney, the latter will be entitled to recover the whole amount of the fee in like manner as if the contigency had transpired upon which the payment of the fee was made to depend. [Emphasis in original.]
22 So.2d at 890-91. We agree with the trial court's holding that the contingency fee agreement involved herein, on its face, was not one providing "for a contingent fee to depend upon the result of the suit" and, accordingly, that the fee was not to be determined based upon the amount of the court judgment. Rather, we believe the agreement herein was for a "contingent fee consisting of a percentage of the amount recovered" and that, accordingly, the settlement was the amount upon which the fee was to be computed.
The fee anticipated in the agreement is to be computed and paid out of the proceeds of a recovery, i.e., an amount actually collected. The agreement expressly provides, no recovery--no fee. In our view, this can only mean no amount collected--no fee to be paid. Obviously the words "recovery" and "total recovery" when used in connection with a settlement before suit could...
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