Weksler v. Stamatinos, 74--1741

• Decision Date: 24 June 1975
• Docket Number: No. 74--1741,74--1741
• Citation: 314 So.2d 616
• Parties: Bernard B. WEKSLER, Petitioner, v. Constantinos STAMATINOS et al., Respondents.
• Court: Florida District Court of Appeals

Page 616

314 So.2d 616

Bernard B. WEKSLER, Petitioner, v. Constantinos STAMATINOS et al., Respondents.

No. 74--1741.

District Court of Appeal of Florida, Third District.

June 24, 1975.

Aronovitz & Weksler, Miami, for petitioner.

Pettigrew & Bailey, Stephens, Magill, Thornton & Sevier, Miami, for respondents.

Before BARKDULL, C.J., and PEARSON and NATHAN, JJ.

PER CURIAM.

This is a common law certiorari proceeding, in which we are called upon to review an order of the trial court directing the disbursement of the settlement proceeds to various attorneys and the plaintiff.

The action was commenced in the trial court by the filing of a complaint for malicious prosecution. Counsel for the plaintiff at the inception of the law suit was Bernard Weksler. Subsequently, the plaintiff suffered an adverse final summary judgment and while this was on appellate review Mr. Weksler was, in effect, discharged as attorney for the plaintiff and, in lieu thereof, the firm of Pettigrew & Bailey took over the prosecution of the appeal. During the pendency of the appeal, counsel for the respective parties entered into a stipulation or agreed order establishing a lien in Mr. Weksler's favor. Said stipulation read in part as follows:

'It is further Ordered and ADJUDGED that the attorneys in this cause shall keep said BERNARD B. WEKSLER fully apprised of all settlement negotiations, if any. No settlement shall be made without an Order of this Court.'

The final summary judgment was reversed by an opinion of this court, reported as Stamations v. Northeast Airlines, Inc., Fla.App.1972, 258 So.2d 52. Thereafter, the matter came on for trial on the malicious prosecution claim before a jury. During the seventh day of the trial (against the recommendation of Mr. Bailey, who was conducting the trial proceedings for the plaintiff), the plaintiff accepted a settlement of $50,000.00 and a letter of apology.

The matter then recurred before the trial judge in regard to Mr. Weksler's lien and the amount of attorney fees that would be due the respective counsel for the plaintiff. There was some contention that Mr. Weksler had agreed with the plaintiff to accept one-third of the gross recovery in settlement of all attorney fees that might be due him (including fees for services not rendered in the instant civil action), and Pettigrew & Bailey had expected to receive a one-third fee for their services, Pettigrew & Bailey brought it to the attention of the court they felt that if both counsel were to be compensated for one-third of the recovery (or two-thirds of the entire settlement) that this would be an unconscionable amount. The trial court attempted to mediate the dispute between the lawyers and ultimately entered the order under review awarding $12,500.00 to Weksler, $15,000.00 to Pettigrew & Bailey, with the balance remitted to the plaintiff. Mr. Weksler, at all times, objected to the proceedings and contended that he was entitled to one-third of the settlement or at leat to have his fee determined on the quantum meruit basis, and that his lien should not be extinguished upon the settlement proceedings by the disbursement of same until his fee was actually determined. He has filed a common law petition for certiorari to test the validity of the trial court's order disbursing the funds.

Certiorari is not an appropriate remedy for the petitioner to utilize to test the trial court's order. See: Hastings v. Osius, Fla.1958, 104 So.2d 21. However, pursuant to the holding in State v. Johnson, Fla.1974, 306 So.2d 102 and Art. V, § 2(a), Constitution of the State of Florida, we shall determine the cause on the merits.

It would have been better for all parties concerned if the fee dispute could have been resolved by the trial judge. However, without the amount being fixed in...