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O'Malley v. Freeman

Florida Court of Appeals, Fourth District

April 4, 2018

WILLIAM O'MALLEY, Appellant,
v.
BRIAN FREEMAN, ESQ., and THE FREEMAN LAW FIRM, P.A., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case No. 50-2010-CA-003492 XXXX MB AJ.

          Steven R. Browning and Xavier T. Saunders of Spohrer & Dodd, P.L., Jacksonville, for appellant.

          Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellees.

          Per Curiam.

         Appellant William O'Malley appeals an order awarding Appellees Brian Freeman and the Freeman law firm $83, 379.47 in attorney's fees and costs for work performed by Freeman as attorney for Appellant on a contingency fee basis. We reverse the award because the trial court erred in finding the parties had an enforceable agreement. However, as services were performed by Freeman and a benefit was received by Appellant, the trial court may award Freeman fees and costs on a quantum meruit basis. As such, we remand this issue to the trial court, with the measure of fees to be calculated utilizing the analysis discussed in Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So.2d 366 (Fla. 1995).

         Background

         Appellant was in a car wreck leaving him in a coma for months. During this period, his mother signed a personal injury contingency fee contract as "personal representative of the estate of William O'Malley." However, Appellant had not executed a power of attorney, had not been declared legally incompetent, and had not been appointed a legal guardian. Soon after waking, he signed a document giving his mother power of attorney. Appellant's mother later testified that he was "totally incapacitated at that time."

         Freeman claimed that he had several phone conversations with Appellant and that Appellant knew Freeman had filed suit on his behalf. Appellant later terminated the representation without explanation. Freeman never claimed to have shown the fee agreement to Appellant or otherwise attempted to have him ratify it.

         The trial court found that Appellant ratified the fee agreement signed by his mother and that the "times and fees submitted by Freeman [we]re fair and reasonable for like services within the community." The trial court made an oral ruling as well, noting that Freeman's work "probably would have been of great benefit if there had been better communication but under the circumstances it's unjust for someone . . . to work on a case and . . . get discharged without any real explanation." The court awarded the sum Freeman sought, minus the work performed after his discharge.

         Analysis

         To the extent that a trial court's order on attorney's fees is based on an interpretation of the law, we have de novo review. Ferere v. Shure, 65 So.3d 1141, 1144 (Fla. 4th DCA 2011). Otherwise, particularly with respect to the amount of the award, the standard of review is abuse of discretion. Hinkley v. Gould, Cooksey, Fennell, O'Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007).

Every lawyer who accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in any action, claim, or proceeding whereby the lawyer's compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only where such fee arrangement is reduced to a written contract, signed by the client, and by a lawyer for the lawyer or for the law firm representing the client. No lawyer or firm may participate in the fee without the consent of the client in writing. Each participating lawyer or law firm shall sign the contract with the client and shall agree to assume joint legal responsibility to the client for the performance of the services in question as if each were partners of ...

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