Difference Between Retaining Lien & Charging Lien - Order Denying Injunction Reversed

In Brickell Place Condo Association, Inc., et al. v. Joseph H. Ganguzza & Associates, P.A. (3D09-1963), the Third District held that the attorneys asserting a retaining lien did not have a right to do so because:

we find that the fee arrangement for collection and foreclosure matters was, in reality, a contingent fee arrangement and a law firm may not assert a retaining lien for fees owed in a contingency fee case until the contingency has occurred, we find that the retaining lien was unlawful.

The court stated:

At the hearing on the Associations’ motion, the Associations argued that for collection and foreclosure matters, the Associations and the law firm operated under a contingency fee arrangement. The Associations, therefore, claimed that the law firm, could only recover the reasonable value for its services, limited by the maximum contract fee, upon the successful occurrence of the contingency. Because the contingency upon which the services were based has not yet occurred (the collection of the delinquent unit owners’ fees), the law firm is not yet entitled to be paid for its services and the retaining lien filed by the law firm cannot be legally or ethically maintained. We agree.

A retaining lien differs from a charging lien. A charging lien is placed on any monetary recovery due the client at the conclusion of the lawsuit...On the other hand, a retaining lien is a passive lien and rests entirely on the right of an attorney to retain possession of his client’s papers, money, securities, and files as security for payment of the fees and costs earned by the law firm to that point.

***

Because the contingency has not occurred, the law firm could not assert a retaining lien for fees it contends it is owed on collection matters that were still pending when it was discharged. If the law firm believes it is owed money for services it rendered in the collection of delinquent unit owner fees, it may file a charging lien and is entitled to the reasonable value of its services on the basis of quantum meruit, limited by the contract flat fee the parties agreed to.

Proposal For Settlement To Multiple Parties Not Enforceable

In a 4-3 decision released today in Attorney’s Title Insurance Fund, Inc., v. Joseph W. Gorka, Et Al. (SC09-1899), the Florida Supreme Court held a proposal for settlement is invalid if it is conditioned upon actions out of the control of the offeree.  The court stated:

This case is before the Court to review the decision of the Second District Court of Appeal in Attorneys‟ Title Insurance Fund, Inc. v. Gorka, 989 So. 2d 1210 (Fla. 2d DCA 2008). The district court certified its decision to be in conflict with the decision of the First District Court of Appeal in Clements v. Rose, 982 So. 2d 731 (Fla. 1st DCA 2008), with regard to the validity and enforceability of a joint offer or proposal of settlement that is conditioned on the mutual acceptance of all joint offerees. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We hold that this type of joint offer is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal. Accordingly, we approve the well reasoned decision of the Second District and disapprove the decision of the First District to the extent it holds otherwise.

***

The issue presented by the conflicting decisions is whether a joint offer of settlement or judgment that is conditioned on the mutual acceptance of all of the joint offerees is valid and enforceable. We approve the decision of the Second District Court of Appeal and hold that this type of joint offer is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal. The conditional nature of the offer divests each party of independent control of the decision to settle, thereby rendering the offer of judgment invalid and unenforceable.

The majority included Justice Pariente, Justice Lewis, Justice Labarga, and Justice Perry.  Justice Polston wrote a dissent and was joined by Justice Canady and Chief Justice Quince.

Refusal To Submit To Breathalyzer Properly Admitted

In two consolidated cases, Kurecka v. State & State v. Power (4D08-2154 & 4D08-3221), the Fourth District held a DUI defendants refusal to submit to a breathalyzer was properly admitted into evidence even though the defendants mistakenly believed they were entitlted to counsel prior to making the decision.  The court stated:

Our research has not yielded any clear indication that the confusion doctrine is a recognized exclusionary rule or defense to a license suspension in Florida. And though we might agree that the confusion doctrine could properly be applied in circumstances where law enforcement created a defendant’s confusion about the right to counsel for breath testing, the cases before us do not present those circumstances. Here, the undisputed facts show that the defendants’ confusion was not officer-induced. The arresting officers did not advise the defendants of their Miranda rights before or during their reading of the implied consent law.

As discussed above, our implied consent statute does not obligate a police officer to advise an accused that the right to counsel does not apply to the breath test setting. However, we see no harm in placing a minimal burden on officers to briefly explain this to suspects who request counsel when asked to submit to a breath test. Such an explanation would clear up a suspect’s confusion and ensure that refusals admitted into evidence at trial are, in fact, knowing and voluntary refusals that show “consciousness of guilt.” We believe that responsible police practice “should lead professional, courteous officers to advise insistent defendants that the right to counsel does not apply to chemical tests. Where a driver repeatedly asks to speak with an attorney, it would be courteous and simple for the officer to correct the accused’s mistaken assumptions.” Reitter, 595 N.W.2d at 655.

Of course, we cannot impose duties beyond those created by the  legislature. The implied consent statute was enacted to assist in the prosecution of drunk drivers. Determining whether informing a suspect that he does not have the right to a n attorney for breath testing purposes—as part of the implied consent warning—supports or frustrates the goal of gathering evidence for these cases is a matter for the legislature to decide.

Prejudgment Interest Not Available On Anticipated Lost Profits & Actions In Trial Court After Notice of Appeal

In Lauderdale Marine Center, LTD. v. MYD Marine Distributors, Inc. (4D08-3638 & 4D09-446), the Fourth District addressed two issues.  First, the court addressed prejudgment interest.  The court stated:

Prejudgment interest may be awarded where the plaintiff suffers an out-of-pocket pecuniary loss and establishes a fixed date of the loss...Damages are liquidated 'when a verdict has the effect of fixing damages as of a prior date.'...Future damages, such as “anticipated business profits,” are not vested property rights and cannot be liquidated as of a past date certain.

The second issue addressed was issues that happen in the trial court after the filing of a notice of appeal and the court stated:

We also note that we may not consider appellant’s arguments regarding the attorneys’ fee hearing. This court may review only proceedings occurring prior to the date of appellant’s notice of appeal. Fla. R. App. P. 9.110(h). As the notice of appeal was filed months prior to the hearing on attorneys’ fees, we lack jurisdiction to consider the issue.

Punitive Damage Cap Question Certified To Florida Supreme Court

In Lawnwood Medical Center, Inc. v. Samuel H. Sadow, M.D. (4D08-1968), the Fourth District certified the following question to the Florida Supreme Court as one of great public importance:

Are punitive damages of $5,000,000 arbitrary or excessive under the Federal Constitution where the jury awarded no compensation beyond presumed nominal damages but found that defendant intentionally and maliciously harmed plaintiff by slanders per se?

The facts were described as follows:

A surgeon with staff privileges sued a hospital for breach of contract, and later added a claim for slander per se, seeking compensatory damages for both claims, as well as punitive damages for the slander.  He alleged that the hospital had breached its contract with its medical staff, the Medical Staff Bylaws, by invalidly giving another surgeon exclusive privileges for cardiovascular surgery. The exclusive grant barred him from such surgery even though he had been approved for it by the hospital’s credentialing committee and medical staff leadership. The slander claim involved statements during the litigation by senior executive officers of the hospital that, among others, the doctor was not even “qualified to perform surgery on a dog.”

The jury found the hospital liable on the breach of contract claim and fixed his total damages at $2,817,000, reduced to $1,517,000 because he could have mitigated his losses. In separate proceedings on the slander per se claim, the jury found Lawnwood liable for the slanders; that Lawnwood specifically intended to harm him by its per se slanderous statements; that, in fact, it had actually injured him by the statements; and that he suffered no compensatory damages from the slanders but that he was entitled to punitive damages of $5 million from the hospital. After extensive hearings, the trial court denied Lawnwood’s post trial motions for directed verdict and a new trial or a remittitur of punitive damages to a reduced sum.

In the appeal of the contract claim, Lawnwood repeats its trial court argument of statutory immunity from liability to the surgeon. As to the claim of slander per se, Lawnwood presents no appellate issues regarding liability or entitlement to punitive damages. Instead it appeals solely the amount of punitive damages, confining its argument to the contention that $5,000,000 is excessive under the United States Constitution. Before addressing these two issues, we must first examine the evidence supporting the verdicts.

The court then provided an extensive analysis of punitive damage caps and the application of the specific case at issue.

New Supreme Court Website

The United States Supreme Court has a new website, still found at http://www.supremecourt.gov/.  The new site is also embedded below:

Middle District Judge Scriven Grants Habeas Petition - State Failed To Disclose Payment To Witness

In  Guzman v. Secretary, Department of Corrections, United States District Judge Mary Scriven granted a writ of habeas corpus filed by James Guzman because the state failed to disclose a witness had been paid.  Prior opinions from the Florida Supreme Court outline the facts and can found at the following links: Guzman v. State, 941 So. 2d 1045 (Fla. 2006); Guzman v. State, 868 So. 2d 498 (Fla. 2003); Guzman v. State, 721 So. 2d 1155 (Fla. 1998), cert. denied 526 U.S. 1102 (1999); and Guzman v. State, 644 So. 2d 996 (Fla. 1994).  Judge Scriven stated:

Nevertheless, it is clear that the State provided Ms. Cronin with a payment of $500,  which is a significant sum to an admitted crack cocaine addict and prostitute. Ms. Cronin was the key witness in this case, and the credibility of her testimony was critical to the State’s case against Petitioner. The $500 payment would have provided substantial and specific evidence of Ms. Cronin’s motivation to lie against Petitioner. The $500 payment was more than just another avenue of impeachment against an already discredited witness. The fact that the lead detective and the lead witness twice denied the existence of the payment is at least a tacit admission that it was perceived to have relevance to a reasonable fact finder viewing the credibility of this witness.

More importantly though, neither the trial court on remand nor, therefore, the Supreme Court of Florida on review, addressed the impact of the inability to impeach Detective Sylvester concerning her denial that any payment had been provided to Ms. Cronin. Petitioner’s counsel was never given the opportunity to impeach the detective concerning her false testimony with regard to the payment, or to impeach her regarding her having permitted the key witness to give false testimony under oath before the court in the trial proceeding. Certainly a reasonable, objective fact-finder would have considered such testimony relevant to the evaluation of the evidence.

***

The $500 payment would have been of special concern to the fact-finder since Ms. Cronin had previously and repeatedly denied any knowledge of the circumstances surrounding the murder.

***

Under the facts of this case and the applicable federal law, Petitioner has shown that the decision of the Supreme Court of Florida was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Likewise, Petitioner has shown that the decision of the Supreme Court of Florida was based on an unreasonable determination of the facts in light of the evidence presented. For this reason, this issue is meritorious, and Petitioner is entitled to habeas relief on this claim.

The decision was discussed HERE in the Miami Herald and is below:
Guzman v. Florida

"Fla. House passes limits on lawsuits, lawyer fees"

Business Week has an article today titled "Fla. House passes limits on lawsuits, lawyer fees."  The article can be viewed HERE.  You can also read articles in the Tampa Tribune and Miami Herald.

Florida Supreme Court To Decide Whether Corporation Should Be Forced To Indemnify For Officers Criminal Acts

Update: On June 9, 2011, the Florida Supreme Court reversed the underlying opinion in this case. The Florida Supreme Court's opinion can be viewed HERE.

On Monday, the Florida Supreme Court entered an order accepting jurisdiction in Banco Industrial de Venezuela, C.A. v. de Saad (SC10-21).  The order can be viewed HERE.  This case was previously discussed HERE, when the Third District entered an order denying a motion to stay mandate. The decision that will be reviewed was released by the Third District on September 16, 2009 and can be viewed HERE. The jurisdictional briefs can be viewed at the links below:

*Jurisdictional Initial Brief;

*Beeler's Jurisdictional Answer Brief; and

*DeSaad's Jurisdictional Answer Brief.

The Petitioner's Brief on Jurisdiction summarizes the issues in the case as follows:

The Third District misapprehended the significant differences between Delaware’s and Florida’s indemnification statutes. Florida’s Legislature, as a matter of public policy, enacted an indemnification statute that prohibits a corporate officer from seeking indemnification if the officer knowingly violated the law or entered into a transaction for an improper personal benefit. Section 607.0850(7), Fla. Stat. There is no such similar prohibition in Delaware law. To the contrary, Delaware’s statute mandates indemnification even in cases where the Florida Legislature (as evidenced by its specific adoption of subsection (7)) has determined such an indemnification obligation would be offensive both to the public interest and the legitimate business community. The Third District disregarded Florida law, and instead imposed Delaware’s indemnification law on BIV-Miami, a foreign corporation merely doing business in Florida. Ignoring Florida law to blindly follow Delaware law is not reasoned judicial decision-making. See Stuart R. Cohn, Dover Judicata: How Much Should Florida Courts Be Influenced By Delaware Corporate Law Decisions?, 83 Fla. Bar J. 20, 21 (Apr. 2009) (“The prominence of Delaware courts should not . . . lead to an overly submissive attitude or one that gives undue influence to Delaware decisions . . . [T]here are considerable differences between Florida and Delaware that ought to provide caution to Florida courts.”).

This issue is one of critical public importance for all corporations doing business in Florida. Corporations should be able to depend on the Legislature’s considered judgment that no corporation doing business in Florida should be forced to indemnify and pay for the criminal acts of a wayward corporate officer.

The Third District also created a direct and express conflict by allowing the trial court to resolve the quintessential jury question of which reasonable interpretation of de Saad’s employment contract was more reasonable, simply rejecting BIV’s understanding that it could suspend her until there was clarification as to whether she engaged in wrongdoing. The Third District created additional direct and express conflicts with Florida law governing whether factual disputes (such as to who breached first) can be resolved on summary judgment, whether the doctrine of mitigation exists in Florida contract law, and whether summary judgment can be granted when a party has well-pled unresolved affirmative defenses. These issues are of great importance to all parties who contract for goods or services in Florida.