Snyderburn v. Moxley
| Decision Date | 31 March 1995 |
| Docket Number | No. 94-1739,94-1739 |
| Citation | 652 So.2d 945 |
| Parties | 20 Fla. L. Weekly D805 Philip J. SNYDERBURN, as Receiver of Sunland Mortgage Corporation and Philip J. Snyderburn, P.A., Petitioners, v. Honorable John D. MOXLEY, Circuit Court Judge, and Peter Bantock, et al., Respondents. |
| Court | Florida District Court of Appeals |
William M. Rishoi, of Snyderburn, Rishoi & Swann, Winter Park, for petitioners.
John Dean Moxley, Jr., Titusville, for respondent.
Barton S. Sacher, P.A., and Perry Ian Cone, of Hornsby, Sacher, Zelman & Stanton, P.A., Miami, Michael H. Kahn, of Michael H. Kahn, P.A., Melbourne, John R. Beranek, of MacFarlane, Ausley, Ferguson & McMullen, Tallahassee, for respondents Peter Bantock, et al.
This is the second appearance of this attorney's fee dispute before this court. In a lengthy opinion, Snyderburn v. Bantock, 625 So.2d 7 (Fla. 5th DCA 1993), review denied, 634 So.2d 622 (Fla.1994) [Snyderburn I], this court outlined the facts giving rise to the dispute and addressed the issue presented by Snyderburn on appeal. Briefly stated, the issue was whether the lower court had erred in determining that by entering into an agreement to participate in a contingent fee in a lawsuit in which a former client was one of several defendants, Snyderburn had violated his ethical obligation to his client and was thereby equitably denied a charging lien to enforce any rights under the fee agreement. We held that the lower court erred in precluding Snyderburn from recovering any share of the fee generated from settlement monies contributed by those defendants who were not Snyderburn's clients:
[N]either the Bantock plaintiffs, nor their counsel are unfairly prejudiced by enforcement of the fee agreement for a percentage of the settlement monies contributed by anyone other than Padgett and KVP.
In the lower court, by memorandum filed prior to entry of the order that was appealed in Snyderburn I, the attorneys contesting Snyderburn for the fee (referred to collectively as "Sacher, Kahn"), argued that Snyderburn had no right to recover under the contingent fee agreement at all. Their contention was that no charging lien was appropriate because Snyderburn had already received more monies than he would be entitled to under the only theory available to him--quantum meruit. The case relied upon by Sacher, Kahn in support of this proposition was Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982), which addressed the question of "the proper basis for compensating an attorney discharged without cause by his client after he has performed substantial legal services under a valid contract of employment." Id. at 1017. Reliance on Rosenberg seemed to be based on a somewhat amorphous argument that either Snyderburn's waiver was a species of resignation that terminated any rights he had under the agreement or that, because Snyderburn could have been discharged and probably would have been discharged had he not signed the waiver, Sacher, Kahn should not be disadvantaged by their failure to discharge Snyderburn in reliance on his waiver. The effect of a "discharge" ala Rosenberg would be that Snyderburn had no fee agreement rights to protect with a charging lien. The lower court correctly gave short shrift to this argument, ruling that Snyderburn's claim was based solely on the contingent fee agreement and the validity of Snyderburn's waiver of his rights under the agreement: 1
If the contingent fee dies, no recovery. If it lives, recovery. Issue waiver. Valid waiver or not valid waiver.
The lower court ruled that Snyderburn had proved all the elements of his charging lien, citing to Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383 (Fla.1983). 2
On appeal, Sacher, Kahn relied again on their Rosenberg argument:
Even if Snyderburn's resignation and waiver was precipitated without good cause--which it was not--Snyderburn would only be entitled to quantum meruit--not the entire contingent fee. See, e.g., Rosenberg v. Levin, 409 So.2d 1016, 1021 (Fla.1982). Nevertheless, an award of quantum meruit would not be appropriate here, because Snyderburn has already recovered for each and every hour and minute of professional time spent in Bantock v. Whittington....
In their motion for rehearing/rehearing en banc, Sacher, Kahn continued to press the quantum meruit theory:
If Sacher/Kahn and the Bantock Plaintiffs, in defense of Kinsey Vincent Pyle's and Padgett's motion to disqualify counsel (R642-45), had not been able to persuade Snyderburn to execute the waiver of the fee, they could have informed Judge Moxley that they had discharged Snyderburn. Clearly under Smith and Rosenberg, they had a right to dismiss Snyderburn. The waiver which he executed should not strengthen his position.
Sacher, Kahn based their Snyderburn I application for rehearing en banc on what it characterized as "a glaring conflict" with this court's earlier decision in Smith v. Parker, 508 So.2d 1262 (Fla. 5th DCA 1987) and Rosenberg v. Levin because both of those cases held that a client has an unrestricted right to terminate counsel for any reason, which would eliminate any right to recover under the fee agreement. "If the termination is wrongful or simply arbitrary, the attorney has the right to recover damages in quantum meruit." This...
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