Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom

• Citation: 428 So.2d 1383
• Decision Date: 17 March 1983
• Docket Number: No. 60763,60763
• Court: United States State Supreme Court of Florida
• Parties: SINCLAIR, LOUIS, SIEGEL, HEATH, NUSSBAUM & ZAVERTNIK, P.A., Petitioner, v. Phillip E. BAUCOM, et al., Respondents.

Page 1383

428 So.2d 1383

SINCLAIR, LOUIS, SIEGEL, HEATH, NUSSBAUM & ZAVERTNIK, P.A., Petitioner, v. Phillip E. BAUCOM, et al., Respondents.

No. 60763.

Supreme Court of Florida.

March 17, 1983.

Paul A. Louis, Bayard E. Heath and John L. Zavertnik of Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A., Miami, for Petitioner.

Cromwell A. Anderson and Douglas C. Broeker of Smathers & Thompson, Miami, for Phillip E. Baucom.

Counsel for Ruby Baucom was granted leave to withdraw.

EHRLICH, Judge.

This cause is before the Court on petition for discretionary review from a final order of the Third District Court of Appeal. Baucom v. Baucom, 397 So.2d 347 (Fla.App. 3d DCA 1981). That opinion affirmed the trial court's denial of enforcement of a charging lien and denial of permission to pursue the litigation to secure attorneys' fees. Because this decision directly and expressly conflicts with decisions of this Court in Greenfield Villages, Inc. v. Thompson, 44 So.2d 679 (Fla.1950), In re Warner's Estate, 160 Fla. 460, 35 So.2d 296 (1948), and Renno v. Sigmon, 148 Fla. 229, 4 So.2d 11 (1941), we have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

Petitioner represented Ruby Baucom in divorce proceedings and in a protracted property dispute against Phillip Baucom. After several years of negotiations and court battles, Ruby and Phillip met privately, without presence or advice of counsel, and agreed upon a settlement which they signed and had notarized. Phillip's attorneys redrafted the agreement to eliminate certain unfavorable tax consequences but did not materially change the terms of the Baucoms' contract. Petitioner was first apprised of these developments and introduced to the terms of the settlement in a meeting in the offices of Phillip's attorneys at which the Baucoms signed the redrafted agreement.

Petitioner, believing the terms of the settlement to be misleading and far more unfavorable to Ruby than she realized, advised against signing. Despite this advice, Ruby signed and has remained steadfast in her acceptance of the terms of the settlement.

In subsequent court hearings, petitioner protested the secret nature of the settlement negotiations and the provision in the settlement which required Ruby to bear the costs of her own professional expenses, including attorneys' fees, incident to the protracted dispute between Ruby and Phillip. Petitioner orally, and later in a properly filed motion, gave notice of its intent to enforce a charging lien to secure payment of its fees and requested permission to pursue the litigation against Phillip for the purpose of making him responsible for payment of attorneys' fees.

The trial court denied the request to continue the suit and granted Phillip's motion to dismiss the suit with prejudice, refusing to involve the court in any evaluation of the terms of the settlement. In addition, the court denied motions by petitioner and other counsel also retained by Ruby to enforce charging liens without prejudice to their rights to bring an independent action for enforcement of the liens.

Petitioner appealed these rulings. The district court of appeal reversed the denial of enforcement of the charging lien asserted by Ruby's other counsel, but affirmed the ruling as to petitioner. The court found petitioner's combined requests to continue the litigation and to enforce the charging lien to be an attempt to attack the settlement as a fraud; therefore, the court reasoned, the charging lien was not properly perfected and could not be enforced.

We disagree with the lower court insofar as petitioner is denied enforcement of his charging lien.

The 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. Worley v. Phillips, 264 So.2d 42 (Fla. 2d DCA 1972). Charging liens have been recognized in Florida for more than a century. See, e.g., Carter v. Davis, 8 Fla. 183 (1858); Carter v. Bennett, 6 Fla. 214 (1855); Randall v. Archer, 5 Fla. 438 (1854). The requirements for perfection of this lien are not statutorily imposed. Nichols v. Kroelinger, 46 So.2d 722 (Fla.1950); St. Ana v. Wheeler Mattison Drugs, Inc., 129 So.2d 184 (Fla. 3d DCA), cert. denied, 133 So.2d 646 (Fla.1961). Rather, the requirements have developed in case law which has delineated the equitable nature of the lien. See Greenfield Villages.

In order for a charging lien to be imposed, there must first be a contract between the attorney and the client. Billingham v. Thiele, 107 So.2d 238 (Fla. 2d DCA 1958), cert. dismissed, 109 So.2d 763 (Fla.1959). The contract may be express, Alyea v. Hampton, 112 Fla. 61, 150 So. 242 (1933), or implied, Greenfield Villages; Scott v. Kirtley, 113 Fla. 637, 152 So. 721 (1933). The record before this Court bears witness that an express contract existed between petitioner and Ruby Baucom. Both made explicit references to that contract in hearings before the trial judge.

There 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. Miller v. Scobie, 152 Fla. 328, 11 So.2d 892 (1943); Conroy v. Conroy, 392 So.2d 934 (Fla. 2d DCA 1980), petition denied, 399 So.2d 1141 (Fla.1981). The nature of the litigation involved and the relief sought in the suit between Ruby and Phillip evidence a reasonable understanding that payment would either take the form of an award for attorneys' fees against Phillip or be paid from Ruby's award. It was Ruby's inability to reap the benefit of the divorce settlement dividing all the couple's property which led to the ongoing litigation.

Finally, the remedy is available where there has been an attempt to avoid the payment...