Riveiro v. J. Cheney Mason, P.A.

• Decision Date: 09 March 2012
• Docket Number: No. 2D10–4122.,2D10–4122.
• Citation: 82 So.3d 1094
• Parties: Kirsten L. RIVEIRO, Appellant, v. J. CHENEY MASON, P.A., and Rose M. Marsh, P.A., Appellees.
• Court: Florida District Court of Appeals

82 So.3d 1094

Kirsten L. RIVEIRO, Appellant,

v.J. CHENEY MASON, P.A., and Rose M. Marsh, P.A., Appellees.

No. 2D10–4122.

District Court of Appeal of Florida, Second District.

Feb. 1, 2012.Rehearing Denied March 9, 2012.

Virginia R. Vetter, Tampa, for Appellant.

Rose M. Marsh of Rose M. Marsh, P.A., and J. Cheney Mason of J. Cheney Mason, P.A., Orlando, for Appellees.

CASANUEVA, Judge.

This appeal arises from a proceeding ancillary to the dissolution action of the marriage between William R. Riveiro and Kirsten L. Riveiro. Mrs. Riveiro appeals the trial court's order finding that the two law firms she hired, appellees J. Cheney Mason, P.A., and Rose M. Marsh, P.A. (hereinafter Mr. Mason and Ms. Marsh), were entitled to a charging lien of $76,357.61 plus prejudgment interest. The trial court ordered that the charging lien attach to Mrs. Riveiro's interest on any and all real and personal property she owned relating to assets obtained or subject to the dissolution proceeding, whether she held the asset individually or jointly with any other person. We affirm in part and reverse in part.

Facts

In November 2008 Mrs. Riveiro executed a contract to retain the services of Mr. Cheney and Ms. Marsh in the dissolution of marriage action that Mr. Riveiro instituted. The agreed hourly rate was $400 for each attorney. The contract contained language that her counsel would aggressively pursue every aspect of seeking reimbursement or payment of her fees from Mr. Riveiro, if circumstances allowed. In addition to the $30,000 nonrefundable retainer, Mrs. Riveiro subsequently paid her two counsel substantial amounts for services rendered. In June 2009 Mr. Mason and Ms. Marsh filed a notice of a claim of attorneys' charging lien, seeking a lien in the amount of $36,750.87 for fees owing and unpaid to that date, plus interest. The attorneys' fees continued to mount, and in early September 2009, Mrs. Riveiro met with her husband—without either Mr. Mason or Ms. Marsh being present—and they reached a settlement agreement. In addition to deciding the amount of alimony that Mr. Riveiro would pay, the couple decided which portions of the marital real estate and personal property each would receive. The agreement also contained a provision that Mrs. Riveiro would not seek attorneys' fees from Mr. Riveiro. A few days later, the trial court entered the final judgment of dissolution, incorporated the couple's settlement agreement that equitably divided their real estate and personal property, and reserved jurisdiction to adjudicate Mr. Mason's and Ms. Marsh's claims of charging lien. After an evidentiary hearing in May 2010, the trial court found in favor of Mr. Mason and Ms. Marsh and ordered that a charging lien of the principal amount of $76,357.61 attach to the assets Mrs. Riveiro received in the final judgment of dissolution. As of May 31, 2010, the total amount including interest was $80,851.65. The trial court ordered that the principal amount continue to accrue interest at the statutory rate until paid. It is from this order that Mrs. Riveiro appeals.

Analysis

The law of charging liens has differing applications to real and personal property, both of which are at issue here. Our supreme court observed over a half century ago “that when a litigant contracts with an attorney to litigate a cause and pay him a percentage of the recovery for his fee, he is entitled to a lien on the judgment therefor.” Miller v. Scobie, 152 Fla. 328, 11 So.2d 892, 894 (1943). In Miller, the plaintiff/appellant had employed a firm to bring an action against a defendant for breach of promise, agreeing to pay the firm fifty percent of all sums recovered. The plaintiff met secretly with the defendant and settled their differences out of court, with the defendant agreeing to pay the plaintiff over $8000. In holding that the firm could prosecute the case further to obtain remuneration under their contract for fees, the supreme court noted:

We do not deny the right of litigants to settle controversies out of court but any such settlement without the knowledge of or notice to counsel and the payment of their fees is a fraud on them whether there was an intent to do so or not. It has been said that honor may exist among thieves. When honor and good faith cease to be the very bed rock on which the law practice is anchored, the right of litigants will then cease to be actuated by right and justice and will turn on the practice of tricks and feats of legerdemain.

Id.

In the context of an action for dissolution of marriage, our supreme court reaffirmed this commitment in Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383 (Fla.1983). There, the petitioner, the Sinclair, Louis law firm, expressly contracted with Ruby Baucom to represent her in a dissolution proceeding against Phillip Baucom. After several years of dispute, the Baucoms met privately, without attorneys, and agreed to a settlement that included a provision that Mrs. Baucom be responsible for her own professional expenses, including attorneys' fees, incident to their several disputes. Later, the law firm advised Mrs. Baucom not to sign the settlement agreement but sign it she did. Despite her counsel's advice that the settlement agreement was more disadvantageous to her than she realized, Mrs. Baucom insisted on abiding by its terms. The law firm then orally and in writing gave notice of its intent to enforce a charging lien to secure payment of its fees and to continue litigation against Mr. Baucom for payment of those fees. Id. at 1384. The trial court denied the law firm's claim to enforce its charging lien and the Third District affirmed. Baucom v. Baucom, 397 So.2d 347 (Fla. 3d DCA 1981). Ultimately, the supreme court disagreed and quashed the Third District's opinion insofar as it denied enforcement of the charging lien against Mrs. Baucom. 428 So.2d at 1386.

The supreme court reiterated that a “charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It serves to protect the rights of the attorney.” Id. at 1384 (citing Worley v. Phillips, 264 So.2d 42 (Fla. 2d DCA 1972)). But there is no statutory guide to how to perfect a charging lien. Id. “Rather, the requirements have developed in case law which has delineated the equitable nature of the lien.” Id. at 1384–85. The court then proceeded to identify the requirements for a charging lien. First, there must be a contract between the attorney and the client, either express or implied. Id. at 1385. Second, “[t]here must also be an understanding, express or implied, between the parties that the payment is either dependent upon recovery or that payment will come from the recovery.” Id. In Mrs. Baucom's case, the “nature of the litigation involved and the relief sought in the suit between [Mrs. Baucom] and [her husband] evidence[d] a reasonable understanding that payment would either take the form of an award for attorneys' fees against [Mr. Baucom] or be paid from [Mrs. Baucom's] award.” Id. “Finally, the remedy is available where there has been an attempt to avoid the payment of fees” or where there is “a dispute as to the amount involved.” Id.

Unfortunately, neither the Third District's opinion nor the supreme court's opinion in Baucom describes what assets Mrs. Baucom received in the dissolution action from which she could pay the law firm's fees. However, given the context of a marriage dissolution action, where the client receives property in equitable distribution, there is a reasonable understanding that such property will be the source of funds to pay the client's attorney's fees insomuch as it was the attorney's efforts that secured that property. See Worley, 264 So.2d at 43 (“The creation of a charging lien upon the proceeds of any recovery by the client in an equity action is an acceptable method of providing security for the payment of the attorney's fee.”). But, as will be seen below, there is a distinction as to which property a charging lien can attach.

We turn next to the distinction crafted between a charging lien on real property as compared to one on personal...