Wingate v. Celebrity Cruises, Ltd., 3D11–400.

• Decision Date: 08 February 2012
• Docket Number: No. 3D11–400.,3D11–400.
• Citation: 79 So.3d 180
• Parties: Jerrold WINGATE and the Wingate Law Firm, Appellants, v. CELEBRITY CRUISES, LTD., Appellee.
• Court: Florida District Court of Appeals

79 So.3d 180

Jerrold WINGATE and the Wingate Law Firm, Appellants,

v.CELEBRITY CRUISES, LTD., Appellee.

No. 3D11–400.

District Court of Appeal of Florida, Third District.

Feb. 8, 2012.

Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hinda Klein, Hollywood and Diane H. Tutt, Davie, for appellants.

Mase Lara Aversole, and Curtis J. Mase, Andrew D. Craven, Richard D. Lara, Miami, and Valentina M. Tejera, for appellee.

Before SALTER, EMAS and FERNANDEZ, JJ.

EMAS, J.

Jerrold K. Wingate and the Wingate Law Firm (hereinafter collectively referred to as “Wingate”) appeal an order denying their motion for disbursement of costs incurred during their representation of several of the seventy-seven plaintiffs in cases against Celebrity Cruises, Ltd. and Royal Caribbean Cruises, Ltd. (“RCL”).¹ We affirm.

In 2007, plaintiff Charles Mackarthy, represented by Wingate, filed suit against RCL. On January 8, 2008, RCL filed a motion to disqualify Wingate as counsel for Mackarthy, alleging Wingate had been paying an RCL employee to provide insider information on the cruise line's claims files. At the time this motion to disqualify was filed, Wingate also represented seventy-six other plaintiffs in separate lawsuits against RCL.²

Attached to the motion to disqualify was an affidavit from the RCL employee, who verified she had received payments from Wingate in exchange for providing settlement authority information from RCL's files, including the settlement value which RCL assigned to those claims and the maximum amount RCL had reserved to settle each claim. RCL further alleged that Wingate, “armed with this confidential information ... would attend the mediation and refuse to negotiate an amount lower than the amount set as a maximum by RCL internally.” RCL's motion to disqualify Wingate also requested sanctions, including an award of attorney's fees to RCL.

At the hearing on the motions to disqualify, Wingate stipulated that it would withdraw from representing all seventy-seven plaintiffs. Accordingly, the trial court entered an omnibus order on January 28, 2008, finding, inter alia: (1) the motion to disqualify was moot because Wingate agreed to withdraw; (2) Wingate must cease and desist representation of all plaintiffs in the subject seventy-seven cases; and (3) Wingate would be permitted to file a charging lien for fees and costs incurred in representing the subject plaintiffs, but said permission to file such lien was not to be construed as approval or disapproval of the lien; and (4) the merits of any such claims for fees and costs, including both entitlement and amount, would be adjudicated by the court at a future hearing.

On February 21, 2008, the court held a hearing on RCL's motion for sanctions. Wingate maintained that sanctions should not be imposed because Wingate had withdrawn and no wrongdoing had been proven. Wingate also represented to the court that Wingate had not yet decided whether, and the extent to which, it would seek recovery of its fees and costs, and told the court that many of the former clients hired another firm, Rivkind, Pedraza & Margulies, P.A. (“the Rivkind firm”), to represent them in the RCL cases.

At a hearing held on January 15, 2009, it was brought to the court's attention that Wingate had entered into a secret agreement with successor counsel (the Rivkind firm), through which Wingate would receive, and had in fact already begun to receive, as attorney's fees and costs, a portion of the funds recovered in the RCL cases.³ The court found that Wingate had “intentionally subverted” the January 28, 2008 order, and ordered Wingate to show cause why they should not be held in criminal contempt of court.

On February 18, 2009, the court held a hearing on the order to show cause. During the hearing, Wingate agreed to withdraw (or refrain from filing) any charging lien for attorney's fees on all of the seventy-seven cases. However, Wingate contended that they should be permitted to seek reimbursement of costs actually expended in the course of representing the seventy-seven plaintiffs. The following exchange took place between the court and Wingate's counsel:

THE COURT: Well, let's deal with Mr. Wingate's position.

COUNSEL: Yes.

THE COURT: What is his position?

COUNSEL: His position is that ... he is entitled to recover cost[s] as the cases are resolved, whatever costs were expended.

THE COURT: I found this man acted improperly in obtaining these monies.

COUNSEL: Cost[s], please let me separate cost[s] from fees.

THE COURT: I am not going to give this man a nickel if I already found, as I have, that in fact he obtained an unfair advantage by bribing an employee on the other side to let him know what the settlement value of the case was.

COUNSEL: Judge—

THE COURT: I am not going to give him a nickel.

COUNSEL: Judge, Judge, I'm not asking you to agree with—

THE COURT: Then he does it behind my back by getting a nickel plus.

COUNSEL: Judge, Judge, I am not asking you to agree with me. You asked me what his position was.

THE COURT: All right, if that is his position, I reject it.

COUNSEL: His position is, at this point, he's entitled to recover costs expended.

(Emphasis supplied.)

Thus, the court made it abundantly clear that, based upon its findings of Wingate's illegal and unethical conduct, Wingate was not entitled to “recover cost[s] as the cases are settled” from any of the seventy-seven cases. Thereafter, the court entered a contempt order against Wingate, finding the agreement with the Rivkind firm was “a secret, self-serving and illegal arrangement intended as a means of evading this Court's order concerning Wingate's claim to fees and costs from files which he abandoned.” (Emphasis supplied.) The trial court recounted the relevant history of the case, noting that in its previous order confirming Wingate's withdrawal from representation of the seventy-seven plaintiffs, the court ordered that any claims by Wingate for fees and costs would be adjudicated by the court. The court found that, by entering into the secret agreement with the Rivkind firm, Wingate “willfully disobeyed its Orders regarding the right to seek fees and costs arising out of the seventy-seven (77) cases in question, and for having knowingly received fees and costs in violation of this Court's Orders.” (Emphasis supplied). The court found Wingate in criminal contempt for this conduct.⁴

Wingate appealed the trial court's contempt order. Wingate framed the issue on appeal:

THE TRIAL COURT ERRED AS A MATTER OF LAW IN ORDERING, AS A CONTEMPT SANCTION, WINGATE TO DISGORGE MORE ATTORNEYS' FEES THAN THEY HAD RECEIVED AND IN ORDERING WINGATE TO DISGORGE COSTS INCURRED.

Other than correcting a mathematical error, this Court affirmed the trial court's contempt order, finding that Wingate's argument on appeal “lacks merit.” Wingate v. Celebrity Cruises, 47 So.3d 934, 934 (Fla. 3d DCA 2010). Thus, this Court has already addressed and rejected the contention that the trial court erred in ordering Wingate to disgorge monies paid to them for costs incurred in the course of their representation.

Mr. Wingate was evidently unfazed by the order of criminal contempt, undaunted by the unsuccessful appeal of that order, and undeterred by the disciplinary proceedings and his ultimate disbarment. Four days after this Court issued the mandate in the first appeal, and in what appears to be a textbook example of legal chutzpah,⁵ Wingate filed a motion with the trial court for disbursement of costs, asserting Wingate was entitled to costs incurred in cases which had not yet been settled at the time of the contempt hearing. Once those cases were settled, amounts representing costs were deposited by the Rivkind firm with the clerk of court. The trial court denied Wingate's motion “in light of the dishonest and contumacious conduct of ... Wingate ... as set out in the Contempt Order previously entered by this court,” finding Wingate was “not entitled to such relief.” This appeal followed.

Wingate contends that the trial court's denial of Wingate's motion seeking costs for cases which had not yet been settled at the time of the contempt hearing was tantamount to imposing a new sanction for the same conduct for which Wingate had already been sanctioned. Wingate argues that double jeopardy principles preclude punishing them twice for the same conduct. Alternatively, Wingate argues that the trial court was required to conduct a new contempt hearing and follow the procedures of Florida Rule of Criminal Procedure 3.840 before imposing a sanction of denying costs for the cases which were settled after the contempt order was issued. We disagree.

We first note that Wingate's motion was legally insufficient. Although it was styled “Motion for Disbursement of Costs”, the motion wholly fails to:

• Identify which of the seventy-seven cases Wingate was seeking reimbursement of costs;

• Set forth the actual and specific amount of costs incurred for each of those cases; and

• Attach a copy of any documents itemizing the actual costs incurred.

Indeed, Wingate's two-page motion states simply that in its “representation of various claimants, Wingate incurred and advanced payment of certain costs on behalf of its former clients. The costs included hearing and deposition transcripts, filing fees, long distance telephone charges, mailing, deliver and courier service fees, expert fees, and costs for obtaining copies of medical records.” No further detail is given, and Wingate did not provide the exact amount for the total costs sought, stating only: “[u]pon information and belief, the total amount of costs disbursed by Wingate for and on behalf of those former clients and now deposited to the Registry of the Court [by the Rivkind firm] is in the approximate amount of One Hundred and Fifty Thousand Dollars ($150,000).”

In the ordinary case, an attorney would not be required to obtain the trial court's authorization before disbursing...