final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, Judge; L.T. Case No. 12-30843
Wagner Furst and Neal A. Roth of Grossman Roth, P.A., Coral
Gables, and David J. Sales of David J. Sales, P.A., Jupiter,
Bresky and Jonathan Mann of the Law Offices of Robin Bresky,
Boca Raton, for appellee.
Jo Bondi, Attorney General, and Rachel Nordby, Deputy
Solicitor General, Tallahassee, for Amicus Curiae Office of
the Attorney General of the State of Florida.
Roth, P.A. ("the law firm") appeals an order
granting final summary judgment in a declaratory judgment
action in favor of Kristi Mellen, Individually and as
Personal Representative of the Estate of Michael Munson. We
find merit in the law firm's first argument on appeal,
that the trial court erred in upholding a provision of a
claims bill limiting the law firm's contingency fee. The
Legislature's claims bill provision is an
unconstitutional impairment of the fee agreement between the
parties, and we reverse. As to the second issue raised, we
affirm without further discussion.
firm represented Mellen in a medical malpractice action
against a hospital. The hospital was a state entity and thus
enjoyed a sovereign immunity damages limitation of $200, 000
per incident or occurrence under section 768.28(5), Florida
Statutes (2008). However, section
768.28(5) permits a claimant to seek recovery of a judgment
exceeding this amount from the Florida Legislature. Such
recovery may be sought through a claims bill, but pursuant to
the Rules of Senate, such a bill may not be heard or
considered by the Senate "until all available
administrative and judicial remedies have been
exhausted." Fla. S. Rule 4.81(6) (2012). Attorney's
fees under section 768.28 are limited to "25 percent of
any judgment or settlement." § 768.28(8), Fla.
parties entered into a contingency fee contract under which
Mellen agreed to pay the law firm an amount based on her
gross recovery "in accordance with the guidelines and
limits established by the Supreme Court of the State of
Florida with regard to cases of this type." The contract
specifically accounted for claims against governmental
entities, citing the twenty-five percent contingency fee
limitation of section 768.28(8) and stating, "Certain
claims against governmental entities may have statutory
limits on attorney's fees. In all cases the
attorney's fees will be the maximum amount permitted
under law or by the Courts."
to discussions with the law firm, the hospital agreed to
settle the matter for $3, 000, 000 and to support the passage
of a claims bill by the Legislature to effectuate recovery.
Pursuant to the agreement, the trial court entered a consent
final judgment for $3, 000, 000 against the hospital and
ordered the hospital to tender the statutory limit of $200,
000. It also entered an order approving the settlement,
including the payment of an attorney's fee of "25%
pursuant to contract" and costs.
firm then pursued and obtained a claims bill on Mellen's
behalf. Chapter 2012-250, Laws of Florida, awarded the
remaining $2, 800, 000 to Mellen, limited attorney's fees
to "15 percent of the first $1, 000, 000 awarded under
this act, 10 percent of the second $1, 000, 000 awarded under
this act, and 5 percent of the remainder awarded under this
act, for a total of $290, 000, " and provided that
taxable costs may additionally be recovered.
firm disputed the propriety of the legislatively imposed
$290, 000 fee limitation and Mellen agreed to the law firm
holding an additional $410, 000 in escrow pending settlement
of the fee dispute.Mellen then
brought an action for a declaratory judgment seeking an award
of the escrow balance and the law firm counterclaimed for a
declaratory judgment pronouncing the fee limitation provision
of the claims bill unconstitutional.
trial court entered judgment in favor of Mellen. It found two
cases controlling, Gamble v. Wells, 450 So.2d 850,
853 (Fla. 1984), and Noel v. Sheldon J. Schlesinger,
P.A., 984 So.2d 1265, 1267 (Fla. 4th DCA 2008), each of
which generally holds that the Legislature is not bound by an
existing contingency fee agreement when it voluntarily
distributes funds as an "act of grace" through a
private relief act or claims bill.
ruling, the trial court did not have the benefit of the
Florida Supreme Court's recent opinion in Searcy,
Denney, Scarola, Barnhart & Shipley, etc. v. State,
209 So.3d 1181 (Fla. 2017), a case very similar to the one at
hand. There, a claims bill awarded a total of $15, 000, 000
to a claimant, but limited attorney's fees to $100, 000
despite an existing agreement for a twenty-five percent fee.
Id. at 1185-86. The trial court determined that
Gamble and Noel compelled compliance with
the bill's limitation on attorney's fees, and a
majority of this court agreed. Searcy Denney Scarola
Barnhart & Shipley, P.A. v. State, 194 So.3d ...