IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO: SC BARTLEY C. MILLER, ROBERTA SANTINI, M.D. and DONALD R. McCOY, and

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO: SC BARTLEY C. MILLER, v. Petitioner/Appellant ROBERTA SANTINI, M.D. and DONALD R. McCOY, and CLEVELAND CLINIC FLORIDA, Plaintiffs/Respondents/Appellees Defendant. ON APPEAL BY DISCRETIONARY JURISDICTION FROM THE FLORIDA DISTRICT COURT OF APPEAL FOR THE FOURTH DISTRICT L.T. CASE NOS. 4D09-451; 4D09-673; and 4D (CONSOLIDATED) PETITIONER/APPELLANT BARTLEYY C. MILLER S AMENDED BRIEF ON JURISDICTION SUSAN L. DOLIN, P.A. Counsel for Petitioner/Appellant 9000 Sheridan Street Suite 93 Pembroke Pines, Florida Tel.: Fax: i

2 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF CITATIONS iii STATEMENT OF THE CASE AND FACTS..1 SUMMARY OF ARGUMENT..4 ARGUMENT...5 I. WHETHER THE 4 TH DCA ERRED IN DETERMINING THAT AN ATTORNEY WHO PERFORMS SERVICES ON A CONTINGENCY BASIS WITHOUT A WRITTEN CONTINGENCY FEE AGREEMENT BECAUSE THE ATTORNEY CHANGED FIRMS AND THE CLIENT REFUSED TO EXECUTE ANOTHER IS NEVERTHELESS BOUND BY SUCH AN AGREEMENT IN RECOVERING FEES FROM A CLIENT WHO REFUSES TO PAY 6 II. WHETHER THE 4 TH DCA ERRED IN DENYING MILLER ANY FEES DUE TO HIS HAVING BEEN SUSPENDED FROM THE BAR AFTER HAVING PERFORMED SUBSTANTIAL WORK FOR THE CLIENT.8 III. WHETHER THE 4 TH DCA ERRED IN SANCTIONING MILLER AND REMANDING THE MATTER TO THE TRIAL COURT TO DETERMINE ADDITIONAL SANCTIONS AGAINST MILLER AND/OR HIS COUNSEL FOR RAISING AND DEFENDING NON-FRIVOLOUS MATTERS OF FIRST IMPRESSION 9 CONCLUSION.10 CERTIFICATE OF COUNSEL 11 i

3 CERTIFICATE OF SERVICE..11 ii

4 TABLE OF CITATIONS CASES Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980)..10 Chastain v. Cunningham Law Group, P.A., 16 So.3 rd 203 (Fla. 2 nd DCA 2009) 9 Estate of Schwartz v. H.B.A. Mgt., 673 So.2d 116 (Fla. 4 th DCA 1996)...9 Faro v. Romani, 641 So.2d 69 (Fla , 8 In re: McConnell, 370 U.S. 230 (1961)..10 King v. Young, Berkman, Berman & Karpf, P.A., 709 So.2d 572 (Fla. 3 rd DCA 1988)..6 Rosenberg v. Levin, 409 So.2d 1016 (Fla. 1982) 6, 7, 8 Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Scheller, 629 So.2d 947 (Fla. 4 th DCA 1993)..6, 7 OTHER AUTHORITIES Fla. Ethics Op (April 21, 1972) 8-9 Fla. Ethics Op (April 4, 1966)..9 Fla. Ethics Op (July 15, 1990) 9 Rules Governing the Florida Bar Preamble.5 Rules Governing the Florida Bar Rule iii

5 STATEMENT OF THE CASE AND FACTS This matter commenced with the filing of Miller s Verified Motion to Enforce Charging Lien and Determination of Attorney Fees and Costs against a former client. Miller represented Roberta Santini, M.D., ( Santini ) in an employment discrimination claim against the Cleveland Clinic Florida 1. Miller had no written contingency fee agreement with Santini at the time he represented her, save for when she initially executed a written contingency fee agreement with the Panza Maurer firm in which Miller was a partner. Miller subsequently left the Panza Maurer firm, went to another firm, and finally to his own. Santini never executed another written contingency fee agreement with Miller personally or either the second or third law firm with which he went to practice, even though he requested that she do so 2 (R. 5, Tr. 4/26/07, pp ; R. 6, p. 57; R. 7, Tr. 9/24/07, pp , 107) 3. In or about December 2000, Miller, with Santini s approval, brought Attorney Justin Senior into the case to help combat the vigorous and aggressive defense mounted by Cleveland Clinic s counsel (R. 5, Tr. 4/26/07, pp , 107). Miller was suspended from The Florida Bar during the course of this litigation and 1 Cleveland Clinic Florida is not a party to this appeal nor was it a party in any of the proceedings below. 2 At all times, Miller and Santini conducted themselves as if there were a written contingency fee agreement. 3 R. references are to the appellate record and Tr. references to the trial transcript which is also part of the appellate record. 1

6 Senior took over. The parties eventually agreed to settle, and Senior drew up a standard settlement agreement on behalf of Santini and Cleveland Clinic Florida, which provided that the settlement proceeds would be split between Santini and her attorneys (R. 5, Tr. 4/26/07, p. 124; R. 7, pp ; R. 11, Tr. 6/11/08 pp ). 4 Santini admitted in her brief to the district court that she was well aware that 50% of her recovery would go to her attorneys for their combined fees and costs (Br. 34). Santini never objected to this provision until it was put into writing, when, for the first time, she objected to the settlement agreement, not because of anything having to do with Cleveland Clinic Florida, but because she wanted an adjustment from Miller s share of the fees (R. 6, p. 172). Although Cleveland Clinic Florida tendered the settlement funds, Santini refused to accept them (R. 6, p. 71). And there the case sat, until March 10, 2007 when Miller filed his Motion 5. After nine (9) days of hearing, Miller prevailed before the trial court on the basis of quantum meruit and Santini and her attorney appealed, as the trial court had sanctioned Santini s counsel, Donald McCoy, for misleading the court as to the validity of the settlement agreement and his continually shifting positions on 4 Miller was not involved in the settlement discussions nor the drafting of the settlement agreement (R. 7, p. 57). 5 The district court did not seem to recognize that Miller s Verified Motion was drafted in the alternative, either for relief under the non-existent written contingency fee agreement or in quantum meruit. 2

7 the other issues 6 and ordered him and his client to pay Miller s attorneys fees and costs 7. In the Fourth DCA s per curiam Panel decision issued on May 11, 2011, the Court found a series of egregious wrongs all of which were compounded by the assertion of frivolous defenses of numerous and patently erroneous trial court 6 The trial judge entertained an ore tenus motion for sanctions after two wasted days of a 9-day hearing that the trial judge later observed should have taken onetenth of the time (R. 13, Transcript 1/29/09, p. 5). During the course of that ore tenus motion, the court heard from Miller s counsel, who made the motion; Attorney McCoy, who made lengthy argument against the imposition of sanctions; and testimony from Attorney Justin Senior. The court heard evidence in the form of testimony gleaned from transcripts of the hearing, which unequivocally showed that Attorney McCoy had made misrepresentations to the court which essentially led the court on a two day wild goose chase into an ancillary area that had to be resolved before the hearing could proceed. The court made specific findings (R. 8, Transcript 9/26/07, p. 115). The court held a subsequent hearing on January 29, 2009 as to what the amount of sanctions should be (R. 13, Transcript 1/29/2009). McCoy had ample notice of that hearing, and although he could theoretically have brought witnesses and sought to be represented by someone other than himself, he did not avail himself of any of those rights. 7 Miller moved for an imposition of award of the attorneys fees and costs that he incurred for these proceedings against both Santini and McCoy(R. 28, Motion for Imposition of Award for Atty s Fees and Costs, 10/30/08). The motion was based on the court s inherent power to award fees and costs as a sanction for bringing forth frivolous defenses to Miller s claim for fees and costs. On January 28, 2009, Santini and McCoy filed their written response to Miller s motion (R. 29, Comment, Memorandum Opposing Miller s Motion, 1/28/2009). The court granted Miller s motion on May 15, 2009 (R. 29, Order Granting Motion, 5/15/2009). In the intervening five months, there was a special set hearing on Miller s motion, of which Santini and McCoy had notice (R. 13, Transcript 1/29/09). At no time did they request that they be permitted to bring in witnesses, nor did either of them engage other counsel to represent them. Attorney McCoy was permitted to argue in opposition to the motion, and he did so at length (Id.). Santini and McCoy simply filed a Response in Opposition to the court s order granting Miller s motion on June 1, 2009 (R. 29, Response, June 1, 2009). 3

8 orders. (A.1, at 1) 8. It also cited to at least 15 other errors but did not specify them. (A. 1, at 24). The district court sua sponte imposed sanctions of appellate fees against Miller and remanded this matter back to the trial court with directions to consider sanctions against Miller and his attorney for not conceding errors both [in the trial court] and now before [the district court] in violation of an ethical duty. (A.1, at 24) 9. It also ordered that McCoy and Santini be permitted to file a motion against Miller and his attorney before the trial court (A. 1, at pp ). SUMMARY OF ARGUMENT Miller (and his attorney) argued the law as it had existed prior to the district court s holdings of first impression on the foundational issues in this case. The court s holdings constitute a denial of justice to Miller, who rendered valuable services to Santini for which the district court s decisions of first impression have determined that he should not be paid. For this reason alone, the district court s holdings raise serious issues of public importance because they carve out exceptions for attorneys by denying them a remedy under quantum meruit for work done for clients who simply refuse to pay. The district court went further and 8 A. references are to the Appendix materials attached hereto, the 4 th DCA s opinion and its denial of Miller s Motion for Rehearing En Banc. 9 Significantly, the district court s decision fails to cite to any ethical canons, including the Disciplinary Rules Governing the Florida Bar, as authority for its assertion either that Miller or his attorney should be subject to sanctions. 4

9 sanctioned Miller for his conduct in defending his position on appeal and remanded this matter to the trial court for a determination as to whether Miller and his attorney should be sanctioned in the trial court as well. 10 Not only do the holdings of the district court, in matters of first impression, deny the same protections to attorneys who seek fees under basic Florida contract law as every other citizen enjoys, but they also have an extreme chilling effect on a litigant s right to have his legitimate dispute heard in Florida s courts and an attorney s ethical obligation to zealously represent her client within the bounds of the law. Rules Governing the Florida Bar Preamble and Rule 4-3.3(Comment). Accordingly, Miller submits that this Court should take jurisdiction of this matter as the district court s decision raises issues of first impression which are of great public importance because: 1) they chill an attorney s right to seek compensation based on quantum meruit that is available to any other citizen of Florida; and 2) Miller is in the position of having been sanctioned and he and his attorney still face potential sanctions simply for having espoused legal positions which were based on existing law. ARGUMENT 10 The 4 th DCA essentially held that Miller and his counsel should have known that the trial court s rulings in their favor violated law which had not yet been made and would not be upheld at the appellate level (A. 1, pp ). That reasoning puts Miller s counsel in the precarious position of having to argue against the trial court s rulings in her client s favor which were in accordance with the applicable law at the time of the hearings. 5

10 I. WHETHER THE 4 TH DCA ERRED IN DETERMINING THAT AN ATTORNEY WHO PERFORMS SERVICES ON A CONTINGENCY BASIS WITHOUT A WRITTEN CONTINGENCY FEE AGREEMENT BECAUSE THE ATTORNEY CHANGED FIRMS AND THE CLIENT REFUSED TO EXECUTE ANOTHER IS NEVERTHELESS BOUND BY SUCH AN AGREEMENT IN RECOVERING FEES WHEN THE CLIENT REFUSES TO PAY Because there was no extant written contingency fee agreement between Miller and Santini after Miller left the Panza Maurer firm, the trial court ruled that Miller s sole remedy was to sue in quantum meruit. This was the law in Florida before the district court s ruling in this case. King v. Young, Berkman, Berman & Karpf, P.A., 709 So.2d 572 (Fla. 3 rd DCA 1998). The first fundamental finding of first impression that the 4 th DCA made (A.1, pp ) was that the rules announced in three (3) prior court opinions, one from the 4 th DCA itself and two from this Court, applied in cases where there was no written contingency fee agreement, even though all three of the cases dealt with situations where there were such agreements. In Rosenberg v. Levin, 409 So.2d 1016 (Fla. 1982), this Court determined that where an attorney employed under a valid contract who is discharged without cause before the contingency has occurred or before the client s matters have concluded can recover only the reasonable value of his services rendered prior to discharge, limited by the maximum contract fee. Id. at 1021 (emphasis added). Subsequently, the 4 th DCA decided Searcy, Denney, 6

11 Scarola, Barnhart & Shipley, P.A. v. Scheller, 629 So.2d 947, 954 (Fla. 4 th DCA 1993), in which it held that when an attorney has a written contingency fee agreement and is discharged for cause, the lawyer s fees should be based on the modified quantum meruit fee as articulated in Rosenberg reduced by the amount of the damages suffered by the client as a result of the lawyer s conduct that led to the discharge. Id. (emphasis added). Finally, this Court in Faro v. Romani, 641 So.2d 69 (Fla. 1994) addressed the situation where, while representing a client under a written contingency fee agreement, an attorney voluntarily withdraws before the contingency occurs. The Court ruled that in such a case, the attorney forfeits all rights to compensation. That these cases apply in matters where there is no written contingency fee agreement, as held by the 4 th DCA s decision herein, is a matter of first impression that is of vital importance not only to members of the Bar, but to the public which is the consumer of legal services. The Rules Governing the Florida Bar explicitly set forth the requirements for a valid contingency agreement. Where those requirements are not met, there is no valid contingency fee agreement. Thus, the 4 th DCA s decision leaves an attorney who, for the sake of his client and with her full knowledge and permission acts as if he is bound by a contingency fee agreement but the client refuses to honor that arrangement at the end of the case, with a remedy that is in complete conflict with the Bar Rules. The decision has 7

12 further denied such an attorney the only relief which would otherwise be permitted by law, that of a claim in quantum meruit. The opinion cites no law or other authority for abrogating both the Rules Governing the Florida Bar and/or basic contract law when it comes to fee agreements between attorneys and their clients, basically carving out attorneys from the protection of the laws which allow them to collect their earned fees when a client refuses to pay. II. WHETHER THE 4 TH DCA ERRED IN DENYING MILLER ANY FEES DUE TO HIS HAVING BEEN SUSPENDED FROM THE BAR AFTER HAVING PERFORMED SUBSTANTIAL WORK FOR THE CLIENT At the very least Miller should have been able to collect his earned fee up to the amount of the contingency, as in Rosenberg and Scheller. However, the 4th DCA s second most significant holding of first impression denied Miller even that. Against all Florida authority to the contrary, the court held that a lawyer s suspension from practice prior to the contingency occurring constitutes a voluntary withdrawal from his client s matter such that this Court s Faro decision applies and Miller has forfeited any and all rights to a fee (A. 1 at pp. 9, 12). The court s holding on this point completely ignores Florida s only extant authority on this subject, which is comprised of ethics opinions to the contrary. The Florida ethics opinions all hold that a suspended attorney is entitled to his fees for work done prior to the suspension, which is all that Miller sought. Fla. Ethics Op

13 (April 21, 1972; Fla. Ethics Op (April 4, 1966); Fla. Ethics Op (July 15, 1990). Although Florida ethics opinions are not necessarily controlling, they are persuasive authority and, if well reasoned, are entitled to great weight. Estate of Schwartz v. H.B.A. Mgt., Inc., 673 So.2d 116, 118 (Fla. 4 th DCA 1996). This is particularly true where, as here, no court has in fact determined the issue. Chastain v. Cunningham Law Group, P.A., 16 So.3d 203, (Fla. 2 nd DCA 2009). III. WHETHER THE 4 TH DCA ERRED IN SANCTIONING MILLER AND REMANDING THE MATTER TO THE TRIAL COURT TO DETERMINE ADDITIONAL SANCTIONS AGAINST MILLER AND/OR HIS COUNSEL Regardless of the fact that the 4 th DCA s decision on the main issues were of first impression, it sua sponte assessed appellate attorneys fees against Miller. The court further held that while we are extraordinarily tempted to extend this sanction to Miller s lawyer, we choose to exercise restraint in that regard and therefore decline to do so. (A.1 at p. 24). Nevertheless, the district court directed the trial court on remand to consider sanctions against Miller and his attorney.also, on remand, Dr. Santini and McCoy would be free, after serving Miller with twenty-one day notice, to file a section motion in the trial court. If the trial court were to deny such a motion, this court would be able to review that decision for abuse of discretion. (A.1, at pp ). 9

14 Aside from the procedural problems the filing of such a motion would raise at this juncture, it being impossible to provide the required safe harbor provision, the chilling effect on a litigant s right to have legitimate disputes determined in Florida s courts and effective advocacy of counsel on behalf of her client is of paramount public importance. In re McConnell, 370 U.S. 230, 236 (1961). IV. CONCLUSION I express a belief, based on a reasoned and studied professional judgment, that the district court s decision raises issues of exceptional public importance. The district court s decision essentially refuses a lawful remedy for Florida attorneys who perform work for unscrupulous clients simply because they are attorneys. Worse, the decision denies fees legitimately earned by an attorney prior to a suspension from the practice of law with no authority for doing so. And finally, the court s imposition of sanctions on Miller (and potentially his attorney) for advancing propositions of law that existed prior to the court s rulings of first impression, impermissibly chills both a litigant s right to raise legitimate issues as well as effective advocacy in violation of fundamental rights 11. For that reason, the Court should take jurisdiction of this matter and reverse the decision of the district court. 11 As noted supra, the issue of sanctions imposed against McCoy and Santini by the trial court had both factual and legal basis, and is reviewed for abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). The trial court did not abuse its discretion based on what occurred during the 9-day hearing. 10

15 CERTIFICATION OF COUNSEL I hereby certify that this Brief on Jurisdiction complies with Fl. R. App. P in that the brief does not exceed 10 pages in length not counting the introductory portions, the certificate of counsel and the signature page and certificate of service, and is prepared in Font Times New Roman 14 type. Respectfully submitted, SUSAN L. DOLIN, P.A. Counsel for Petitioner/Appellee 9000 Sheridan Street Suite 93 Pembroke Pines, FL Tel.: Fax: By: SUSAN L. DOLIN, FBN CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served this 21st day of September upon Donald R. McCoy, Counsel for Appellant/Plaintiff, at Donald R. McCoy, P.A., 111 S.E. 12 th Street, Ft. Lauderdale, Florida by regular U.S. mail. SUSAN L. DOLIN, ESQ. 11

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