final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, John
& Poliakoff, P.A., and Jon Polenberg, Jude C. Cooper, and
Yasin Daneshfar (Fort Lauderdale), for appellant.
Crabtree & Auslander, and John G. Crabtree, Charles M.
Auslander, Brian C. Tackenberg, and George R. Baise Jr.;
Jason B. Giller, for appellees.
ROTHENBERG, LAGOA, and EMAS, JJ.
plaintiff below, Piero Salussolia, P.A. ("the law
firm"), appeals from the trial court's order
granting the defendants', Gianni Nunnari and Hollywood
Gang Productions, LLC (collectively, "the
clients"), motion for judgment on the pleadings as to
all counts of the complaint. We affirm the portion of the
trial court's order granting judgment on the pleadings as
to the law firm's claim against the clients for payment
of a "success fee." However, because we conclude
that the complaint sufficiently pleads a cause of action for
breach of contract for legal services rendered by the law
firm under the retainer provision of the Attorney/Client
Engagement Agreement ("the Agreement"), or in the
alternate for quantum meruit, we reverse that portion of the
order granting judgment on the pleadings as to the portion of
Count I pertaining to fees for services under the retainer
provision of the Agreement and Counts II and III.
$13, 200, 000 judgment was entered against the clients, the
clients retained the law firm to appeal the judgment,
negotiate a settlement with the judgment creditors for a
reduced amount, and/or pursue other measures to offset the
judgment amount. The clients and the law firm entered into
the Agreement, which contains two separate fee provisions-a
monthly retainer fee provision to offset the fees incurred
during the litigation and a success fee
firm filed a three-count complaint, seeking damages against
the clients under three alternative theories-breach of
contract (Count I), open account (Count II), and quantum
meruit (Count III). The law firm alleged in its complaint
that it performed under the Agreement by negotiating a
settlement with the judgment creditors that reduced the
judgment by millions of dollars. The law firm further alleged
that despite the law firm's performance under the
Agreement and the tendering of invoices for the fees due
under the Agreement, the clients have failed to pay a success
fee or to fully compensate the law firm for its services
under the Agreement.
clients filed their answer, affirmative defense, and a
counterclaim. The counterclaim seeks disgorgement of
attorney's fees paid to the law firm and an equitable
accounting. Thereafter, the clients filed a motion for
judgment on the pleadings. Following a hearing, the trial
court granted the motion as to all three counts, finding that
the law firm's "claims are unsupportable, most
significantly based upon John Alden Life Ins. Co. v.
Benefits Management [Associates], Inc., 675 So.2d 188
(Fla. 3d DCA 1996)." This appeal followed.
"[I]n ruling on a defendant's motion for
judgment on the pleadings, all the is reduced to $6,
000.00 saving Client $4, 000.00, then the Firm success fee
shall be a percentage of $4, 000.00. Success fee shall be
payable to the Firm immediately upon termination of the
Appeal and/or the full execution of the Settlement Agreement.
(emphasis in bold; handwritten provision in italics).
set forth in the complaint must be taken as true and all the
allegations in the answer, which are automatically denied,
must be accepted as false." Tanglewood Mobile Sales,
Inc. v. Hachem, 805 So.2d 54, 55 (Fla. 2d DCA 2001).
Further, "[a] motion for a judgment on the pleadings
should only be granted if the moving party is entitled to a
judgment as a matter of law." Briarwinds Condo.
Ass'n v. Rigsby, 51 So.3d 532, 533 (Fla. 3d DCA
review of the complaint and the Agreement, which was attached
to the complaint in the instant case, reflects that the law
firm's claims are based on the clients' alleged
failure to pay fees due under the Agreement-the fees for
legal services rendered by the law firm under the retainer
provision and a success fee. We agree with the trial
court's finding that the success fee provision, which
fails to include essential terms, is unenforceable. See
John Alden, 675 So.2d at 189 (holding that a contractual
provision to negotiate a bonus payment in the future
"was merely an 'agreement to agree' in the
future about the bonus and hence unenforceable as a matter of
law"). However, as to the law firm's claims based on
the alleged unpaid attorney's fees due under the retainer
provision, we find that the allegations in the complaint were
sufficiently pled to withstand the motion for judgment on the