Scherer v. Austin Roe Basquill, P.A.

• Decision Date: 16 June 2021
• Docket Number: No. 2D20-1116,2D20-1116
• Citation: 325 So.3d 175
• Parties: Jordan M. SCHERER, as parent and legal guardian of Mallory M. Scherer; Jordan M. Scherer, as personal representative of the Estate of Logan Scherer, deceased; Brooke N. Scherer; Jordan M. Scherer; and Joseph Patsko, Appellants, v. AUSTIN ROE BASQUILL, P.A., f/k/a Austin, Roe & Patsko, P.A.; Gregory Andriotis; Gregory Andriotis, as employee of Harper Limbach, LLC; Gregory Andriotis, as employee of Limbach Facility Services, LLC; Harper Limbach, LLC; and Limbach Facility Services, LLC, Appellees.
• Court: Florida District Court of Appeals

325 So.3d 175

Jordan M. SCHERER, as parent and legal guardian of Mallory M. Scherer; Jordan M. Scherer, as personal representative of the Estate of Logan Scherer, deceased; Brooke N. Scherer; Jordan M. Scherer; and Joseph Patsko, Appellants,

v.AUSTIN ROE BASQUILL, P.A., f/k/a Austin, Roe & Patsko, P.A.; Gregory Andriotis; Gregory Andriotis, as employee of Harper Limbach, LLC; Gregory Andriotis, as employee of Limbach Facility Services, LLC; Harper Limbach, LLC; and Limbach Facility Services, LLC, Appellees.

No. 2D20-1116

District Court of Appeal of Florida, Second District.

June 16, 2021

Rehearing Denied September 8, 2021

Steven L. Brannock and Joseph T. Eagleton of Brannock Humphries & Berman, Tampa; and Robert M. Klein of Klein Glasser Park & Lowe, PL, Miami, for Appellants.

F. Wallace Pope, Jr., and Caitlein J. Jammo of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellee Austin Roe Basquill, P.A., f/k/a Austin, Roe & Patsko, P.A.

No appearance for remaining Appellees.

SMITH, Judge.

Jordan M. Scherer and Brooke N. Scherer, individually, and Jordan M. Scherer, as parent and legal guardian of Mallory M. Scherer and in his capacity as personal representative of the Estate of Logan Scherer (collectively, the Scherers), and Joseph Patsko appeal from the order of final summary judgment entered in favor of Austin Roe Basquill, P.A. (Austin Roe), f/k/a Austin, Roe & Patsko, P.A. (ARP)—the law firm that filed a charging lien related to its prior representation of the Scherers under a contingency fee agreement, within their personal injury lawsuit.¹ For the reasons expressed in this opinion, the trial court erred in applying the methodology set forth in Frates v. Nichols , 167 So. 2d 77 (Fla. 3d DCA 1964), and its progeny when it entered the final summary judgment order awarding Austin Roe its contingency fee—adjusted to account for the firm's percentage share according to its shareholder agreement with a departing partner. Because the Scherers terminated ARP before the contingency occurred, by exercising their right of choice under rule 4-5.8, Rules Regulating the Florida Bar after their chosen attorney, Joseph Patsko, parted ways with ARP, the trial court instead should have awarded fees to Austin Roe pursuant to a modified quantum meruit determination as set forth in Rosenberg v. Levin , 409 So. 2d 1016 (Fla. 1982).² We therefore reverse the final summary judgment on the charging lien and remand with instructions for the trial court to enter a final summary judgment awarding Austin Roe fees under the correct method. As this issue is dispositive of this appeal, we decline to comment on the other remaining issues.

I.

The Scherers were brought in as clients of ARP by then shareholder, Mr. Patsko, in September 2016. At that time, ARP was a professional service corporation duly organized under chapter 621, Florida Statutes, and Mr. Patsko had been a named shareholder since 1991. The Scherers signed a contingency fee agreement for ARP, specifically Mr. Patsko, to represent them in their personal injury lawsuit against Gregory Andriotis, Harper Limbach, LLC, and Limbach Facility Services, LLC.³ However, shortly after the Scherers retained ARP, prior to the filing of their lawsuit and before any contingency occurred under the fee agreement,⁴ Mr. Patsko decided to part ways with ARP.⁵ On January 26, 2017, Mr. Patsko and ARP wrote a joint letter to the Scherers pursuant to rule 4-5.8 notifying the Scherers of Mr. Patsko's impending departure and their right to either continue as a client of ARP or retain new counsel or retain Mr. Patsko's new law firm. The Scherers promptly responded and indicated that they were going to retain Mr. Patsko's new firm to represent them in their personal injury action. At the time of his departure, Mr. Patsko had expended approximately fifty hours of attorney time on the case.

Soon after Mr. Patsko's departure, on or around February 1, 2017, the Scherers signed a contingency fee agreement with Mr. Patsko's new law firm—The Patsko Law Group. Austin Roe filed a Notice of Charging Lien on February 16, 2017, and an Amended Notice of Charging Lien on December 5, 2017, which, when taken together, (1) claimed that Austin Roe, as the new iteration of ARP, was entitled to "the entire contingency fee in [the Scherers' lawsuit], less any amount owed to Mr. Patsko under his [shareholder] agreement with [ARP]" because Mr. Patsko owed fiduciary duties of loyalty and care to ARP as a shareholder, officer, and director of ARP, citing Frates and its progeny, and (2) alternatively sought "the reasonable value of its services for its representation of the [Scherers] between September 24, 2016 and January 31, 2017."

In January 2019, almost two years after Mr. Patsko's departure from ARP, the case was resolved favorably for the Scherers when a settlement was reached, and as a result, the cause was dismissed with prejudice with the trial court reserving jurisdiction "to address any and all asserted charging lien issues related to this matter." With the occurrence of the contingency—the payout of the settlement to the Scherers—both Austin Roe and the Scherers filed competing motions for partial summary judgment related to the appropriate methodology for calculating the amount of fees due to Austin Roe—with Austin Roe arguing for an award of the fees based on Frates , under which the portion owed to Mr. Patsko is calculated based on his shareholder interest in ARP, and the Scherers arguing that Austin Roe's share of the fees should be determined by the modified quantum meruit theory explained in Rosenberg .⁶ Austin Roe also moved to strike the Scherers' motion for summary judgment and to exclude the Scherers from participating further in the charging lien matter—arguing they lacked standing because the cause and parties had been dismissed by the trial court upon settlement and they had paid the contingency fee by putting the money in escrow. The trial court's ruling on these partial motions for summary judgment serve as the basis for this reversal.

At the hearing on the cross-motions for summary judgment, the trial court granted Austin Roe's motion to strike the Scherers' motion for summary judgment finding the Scherers lacked standing based upon the April 24, 2019, dismissal of the Scherers as parties. The trial court specifically found that

to the extent that the Scherers present arguments related to their beliefs, their reliance on agreements, and any perceived impact on them that may result from the ruling on this matter, [the] Court finds such arguments are not properly before it and as such, the Court will not consider them. The Court will fully consider the [Scherers' motion for summary judgment] only as it relates to Patsko.

The trial court also granted Austin Roe's motion for partial summary judgment, determining that Frates should govern this fee dispute but leaving open the issue of what portion of the fees was owed to Mr. Patsko based on his equity interest in ARP.

Thereafter, Austin Roe moved for final summary judgment on the amount of Austin Roe's share of the fees. The trial court entered final summary judgment in favor of Austin Roe determining that it was entitled to the full contingency fee, less Mr. Patsko's shareholder interest of 33.11258%, pursuant to ARP's 1991 shareholder agreement. This appeal by the Scherers and Mr. Patsko followed.⁷

II.

We first address the Scherers' argument that the trial court erred by striking their motion for summary judgment finding they "lacked standing" to challenge Austin Roe's claim to a share of the attorney's fees. The charging lien at issue was filed by Austin Roe within the Scherers' cause of action. The settlement reached in the underlying case resulted in a dismissal of the cause, and the trial court specifically reserved jurisdiction to determine the remaining issues related to the charging lien—but the Scherers were not dismissed as parties by the dismissal of the cause, and they remain interested in the matter related to equitable claims for fees based on the agreement to which they were a party. See Pirate's Treasure, Inc. v. City of Dunedin , 277 So. 3d 1124, 1128 (Fla. 2d DCA 2019) ("In determining whether a party has such an interest in the judicial resolution of a dispute, it is helpful to ask whether a decision in the case will actually resolve the rights and obligations of the parties, in which case standing likely exists, or simply will produce an advisory opinion, in which case it does not."). Here, it is clear that the Scherers had sufficient interest as to maintain standing in relationship to the charging lien determinations.

"The charging lien is an equitable right to have costs and fees due an attorney for services in suit secured to him in the judgment or recovery in that particular suit." Naftzger v. Elam , 41 So. 3d 944, 946 (Fla. 2d DCA 2010) (quoting Baucom , 428 So. 2d at 1384 ). An attorney who seeks to enforce an attorney's fee charging lien is required to "show: (1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorney's fees out of the recovery; (3) either an avoidance of payment or a dispute as to the amount of fees; and (4) timely notice." Id. (quoting Daniel Mones, P.A. v. Smith , 486 So. 2d 559, 561 (Fla. 1986) ). Under Naftzger , the interested parties to an attorney's charging lien proceeding necessarily include both the attorney who seeks to enforce the charging lien and the client with whom the attorney or firm contracted to perform services and from whom payment is being sought. See Crescenze v. Bothe , 4 So. 3d 31, 33 (Fla. 2d DCA 2009) ("Indispensable parties are necessary parties so essential to a suit that no final decision can be rendered without their joinder." (quoting Sudhoff v. Fed. Nat'l Mortg. Ass'n , 942 So. 2d 425, 427 (Fla. 5th DCA 2006) )); see also Fla. R. Civ. P. 1.210(a) (identifying interested parties who should be joined in an...