NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-1423,-1528 STATE CONTRACTING & ENGINEERING CORPORATION, Plaintiff-Appellee,

v. CONDOTTE AMERICA, INC. (formerly known as Recchi America, Inc.), THE MURPHY CONSTRUCTION COMPANY, THE HARDAWAY COMPANY, HUBBA RD CONSTRUCTION COMPANY, BALFOUR BEATTY CONSTRUCTION, INC.,

COMMUNITY ASPHALT CORPORATION, and HANSON PIPE & PRODUCTS SOUTHEAST, INC. (formerly known as Joelson Concrete Pipe Company, Inc.), Defendants,

v. RICHARD S. ROSS, ESQ., Movant-Appellant.

___________________________ DECIDED: July 24, 2006

___________________________ Before MAYER, BRYSON, and DYK, Circuit Judges

. Opinion for the court filed by Circuit Judge BRYSON. Concurring-in-part and dissenting-in-part opinion filed by Circuit Judge DYK.

BRYSON, Circuit Judge

.This appeal arises from a dispute over a ttorney fees pursuant to a contingent fee contract in a patent infringement case. Attorney Richard S. Ross appeals from a decision of the United States District Court fo r the Southern District of Florida in Case No. 97-7014-CV that adjudicated his char ging lien against State Contracting & Engineering Corp., and also awarded State Cont racting attorney fees for its defense against Ross’s charging lien litigation. We affirm

. I In the mid-1990s, State Contracting found it self in a patent infringement dispute with the Florida Departm ent of Transportation. State C ontracting sought the advice of attorney John H. Faro, who advised State Contra cting to pursue litigat ion. In May 1997, Faro drafted and signed an engagement letter, to which State Contracting subsequently agreed. In the engagement letter, Faro propos ed that Ross would serve as co-counsel during the litigation. As for compensati on, the letter provided that Ross and Faro are agreeable to the following arrangement: 1) Reduced hourly billing fee of $100 per hour, plus expenses; plus 2) A Contingent Fee, as set forth in the current Standard Florida Bar Contingent Fee Schedule, copy of Schedule and & [sic] Statement of Client Rights attached; less 3) A Credit of all attorney fees b illed and collected against recovery at the time of settlement, however, in no ev ent would the amount of the net fee for representation be less than one third of the value of the settlement to your Company. In accordance with their oral agreemen t, Ross served as lead counsel. Faro performed substantial support functions, including serving as second chair at trial. Faro also handled daily operations during portions of the litigation.

05-1423,-1528 2In 2003 Ross and Faro began to dispute the allo cation of the tota l contingent fee. Although Ross proposed at least two amended versi ons of the fee contract, neither Faro nor State Contracting ever agreed to any of those proposed changes. In June 2003, Ross issued State Contracting an ultimatum, saying that he refused to work with Faro any longer. Because Ross was serving as lead counsel for trial and appellate proceedings in the case, and because trial and appellate deadlines were fast approaching, State Contracting acquiesced in Ross’s demand and discharged Faro. In October 2003 State Contracting enter ed a global settlement with the Florida Department of Transportation for a payment of $8 million. The settlement agreement provided that the Department would list State Contract ing’s patented design as a permissible design for use by its contractors. The agreement further provided that if any contractors chose to use the patented design, the contractor rather than the Department would be liable for any royalty pay ments to State Contracting. Ross and Faro each filed a charging lien to recover their fees. Faro reached a settlement with State Contra cting. That settlement provided for a payment of $1,100,000 to Faro (which was in addition to $222,900 in hourly fees already paid to him). Ross pursued his lien through a five-day hearing before a magi strate judge, who determined that he was entitled to half of t he total contingent fee provided for in the engagement letter. The total contingent fee under the engagement letter, the magistrate judge found, was one third of $8 million. Ross was therefore awarded $1,094,483.34 (which was in addition to $238,850 in hourly fees already paid to him). Subsequently, the court awarded approximately $250,000 to Stat e Contracting for fees that it incurred in defending against Ross’ s claim under the charging lien. Ross

05-1423,-1528 3appeals, challenging (1) the amount of his atto rney fee award under the contingent fee contract and (2) the award to State Contract ing of the attorney fees it incurred in defending against Ross’s charging lien litigation.
II State Contracting argues that this cour t lacks jurisdiction over Ross’s appeal from the district court’s decision on his charging li en. In State Contra cting’s view, once the underlying patent infringement cl aims were voluntarily dismissed with prejudice, the district court’s jurisdiction over the suit was no longer premised on 28 U.S.C. § 1338, and so any appeal in the case after the voluntary dismissal should be taken to the Eleventh Circuit, not this court. We disagree. State Contract ing’s argument is based on a misreading of this court’s case law. A federal district court has supplement al jurisdiction under 28 U.S.C. § 1367 to hear disputes related to char ging liens that are filed agains t that court’s judgments. See, e.g. , Broughten v. Voss , 634 F.2d 880, 883 (5th Cir. 1981) (“If, upon withdrawal, counsel is unable to secure payment for his se rvices, the court may assume jurisdiction over a claim based on a charging lien ov er the proceeds of the lawsuit.”); see also ItarTass Russian News Agency v. Russian Kurier, Inc. , 140 F.3d 442, 444, 448 (2d Cir. 1998). Thus, the district court properly exer cised jurisdiction over Ross’s claim. As for appellate jurisdiction, 28 U.S.C. § 1295(a)(1) provides that this court has jurisdiction over any appeal in a case from a di strict court in which the district court’s jurisdiction “was based in whole or in part on section 1338.” Section 1338 gives district courts exclusive jurisdiction “of any civ il action arising under any Act of Congress relating to patents.” The district court plai nly had jurisdiction over the patent claims in

05-1423,-1528 4this case, having adjudicated the various pat ent claims until the case was ultimately resolved through settlement. State Contracting argues that the district court lost ju risdiction under section 1338 when, as part of the settlement, the patent cl aims were dismissed with prejudice. State Contracting bases its argument on this court’s decision in Nilssen v. Motorola, Inc. , 203 F.3d 782 (Fed. Cir. 2000). Accord ing to State Contracting, that case stands for the proposition that the “critical di stinction” in determining whether section 1338 jurisdiction survives after the dismissal of all the pat ent claims is whether the dismissal was involuntary or voluntary. Al though the dissenting judge in the Nilssen case advocated that approach, the majority expressly re jected the propositi on, noting that the “voluntariness or involuntariness of a dismissal is not controlling.” Id. at 784-85. Rather, the relevant distinction is whether the patent claims ar e dismissed with or without prejudice. If all the patent clai ms in a federal suit are dismissed with prejudice, the district court’s jurisdiction over the entir e case is still based in whole or in part on section 1338. However, if all the patent claims are dismissed without prejudice, the dismissal order is treated as an amendment to the original complaint, and because jurisdiction is determined based on that “a mended” complaint, the district court’s jurisdiction is not considered to be based in whole or in part on section 1338. See id. Here, the patent issues were dismi ssed with prejudice pursuant to the 2003 settlement agreement. Thus, the district court continued to have jurisdiction of ancillary matters under section 1338. This court ther efore has jurisdiction over the appeal.
III

05-1423,-1528 5Ross’s first argument in this appeal is that the district court erred by refusing to conduct de novo review of certain findings of fact made by the magi strate judge. Ross objected to 28 of the magistrate judge’s 93 findings of fact. Pursuant to 28 U.S.C. § 636(b)(1), and subject to any local rules, a party may file with the district court objections to a magistrate judge’s proposed findi ngs. Magistrate Rule 4(b) of the Local Rules of the Southern District of Florida requires such objections to “specifically identify the portions of the proposed findings . . . to which objection is made, the specific basis for such objections, and supporting legal authorit y.” That requirem ent “facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatib le with the purposes of the Magistrates Act.” Nettles v. Wainwright , 677 F.2d 404, 410 (5th Cir. Unit B 1982). Thus, “[f]rivolous, conclusive, or general objections need not be consider ed by the district court.” Marsden v. Moore , 847 F.2d 1536, 1548 (11th Cir. 1988). With respect to 18 of Ross’s objections, we agree with the district court that the objections were conclusory and general, and ther efore we conclude that the district court was not required to entertain those objec tions. Four of Ross’s objections merely assert that a particular finding was “c ontrary to the record evidence.” See Ross’s objections to ¶¶ 31, 39, 64, 82 of the magist rate judge’s findings. Another 14 of the objections reference testimony or documentary evidence, but without specificity. See Ross’s objections to ¶¶ 27, 28, 29, 46, 53, 57, 59, 60, 63, 66, 75, 87, 89, and 90 of the magistrate judge’s findings. For example, several of the objecti ons assert that a particular finding was “contrary to the evidence of record, including testimony of [certain witnesses].” In some of those instances, t he “certain witnesses” are as many as three

05-1423,-1528 6different witnesses, and the objections do not ci te any specific portion of the witnesses’ testimony and do not discuss the testimony that supports the objections. The district court did not scour the testim ony from the five-day hearing before the magistrate judge in order to determine whether any of that testimony supported Ross’s objections, and we hold that the district court was not required to do so. Moreover, we see little merit to the 18 objections noted above, and we therefore do not believe Ross was prejudiced by the distri ct court’s refusal to consider them. For instance, in ¶ 29 of the fi ndings, the magistrate judge explained that Ross and Faro initially agreed to share equally in the work and the fee. Ross objected to that finding as contrary to the evidence. In his brie f on appeal, however, Ross notes that he “had an initial verbal understanding with Fa ro . . . that if he and Faro each contributed equally to the representation, the conti ngency fee portion of the Agreem ent would be split.” Thus, Ross does not seem to express any pertinent disagreement with the magistrate judge’s finding. With respect to the remaining 10 obj ections, Ross at least pointed to some specific evidentiary support for his objections. See Ross’s objections to ¶¶ 20, 30, 36, 38, 40, 55, 56, 62, 81, 93 of the magistrate judge’s findings. Yet even in those 10 instances, he has failed to explain what the proper findings should have been or how the challenged findings affected the outcome of his case. Nonetheless, State Contracting has not shown that Magistrate Rule 4(b) demands that sort of detail, and for that reason we assume for purposes of this appeal that the distri ct court erred by refusing to entertain those 10 objections. As we explain below, however, each of those

05-1423,-1528 710 objections either lacks merit or is irrelevant to the outcome of this case. Therefore, Ross was not prejudiced by the district cour t’s refusal to consider those objections. Five of the 10 objections do not provide any basis for rejecting the magistrate judge’s findings. See Ross’s objections to ¶¶ 20, 30, 38, 56, 93 of the magistrate judge’s findings. For instance, Ross objects to ¶ 20 of the magistrate judge’s findings “to the extent the finding fails to include Rule 4-1.5 as part of the ‘Engagement Letter.’” However, ¶ 20 acknowledges that the four- page attachment of the Florida Bar Rules was part of the “contingency fee agreement,” and the magist rate judge’s other findings of fact and conclusions of law confirm t hat the magistrate judge considered the attachment to be part of the agreement. Indeed, in hi s discussion of ¶ 56 of the magistrate judge’s findings of fa ct, Ross notes that “there is no dispute that Rule 4-1.5 is part of the contract.” Similarly, Ross objec ts to ¶ 93 of the magistrate judge’s findings as “contrary to the record.” The portion of ¶ 93 to which Ross objects is the magistrate judge’s statement that the parti es “stipulated to the dismissa l of Faro’s charging lien.” The record, however, includes a joint stipul ation to that effect, which was signed by Ross. Ross has not provided t he district court or this c ourt with any explanation of why that joint stipulation might have been ineffe ctive, and we theref ore see no basis on which the district court coul d have sustained Ross’s objection. Three of Ross’s objections pertain to findings that had no bearing on the magistrate judge’s disposition. See Ross’s objections to ¶¶ 55, 62, 81 of the magistrate judge’s findings. For example, in ¶ 55 the m agistrate judge simply recounts that at one time during their joint representation Fa ro contended that he should be entitled to between 45 and 55 percent of the contingency fee. Ross insi sts that that paragraph is

05-1423,-1528 8inconsistent with the magistrate judge’s findi ngs that Ross and Faro verbally agreed to split the contingency fee equally . Ross’s objection merely highlights the fact that the magistrate judge did not rely on any of the findi ngs in ¶ 55 to reach his conclusion in this case. Rather, ¶ 55 is provided as backgr ound information to explain how the dispute between Ross and Faro arose. The remaining two objections pertain to ¶¶ 36 and 40 of the magistrate judge’s findings, and to the question whether the “v alue of the settlement” included revenue from future royalty payments. Although the district court stated that all of Ross’s objections were legally insufficient, the court gave considerable attention to the magistrate judge’s key findings, and with respec t to whether “value of the settlement” included revenue from future royalty payments, the court concluded that “the evidence does not support Ross’s content ion[s].” Thus, the district court considered the substance of Ross’s factual contentions in this regard and rejected his contentions as unsupported by the evidence. Likewise, with respect to many of the other objections mentioned above, the district court addressed t he magistrate judge’s relevant findings of fact and concluded that Ross’s contentions were not support ed by the evidence. Thus, any error in the district court’s refusal to expressly address Ross’s objections to the magistrate judge’s findings of fact did not prejudice Ross because the court’s refusal did not affect the outcome of this case.
IV Most of Ross’s substantive challenges to the district court’s decision boil down to a dispute as to the proper division of fees between Faro and Ross. Typically, such a dispute is litigated between the la wyers, as the client has littl e interest in how the fee is

05-1423,-1528 9split among lawyers. See, e.g. , Halberg v. Chanfrau , 613 So. 2d 600 (Fla. Dist. Ct. App. 1993); cf. Shupack v. Marcus , 606 So. 2d 466, 468-69 (Fla. Dist. Ct. App. 1992) (Schwartz, C.J., dissenting from denial of motion for rehearing en banc) (“It is of controlling significance that the clients’ intere sts are not involved at all in this case. They have fully paid the cont ingency fee on the recovery, and no one, least of all the appellant Shupack, claims anything more from them. . . . [T]he sole issue is whether Shupack is entitled to any part of the fees al ready paid the other lawy ers.”). A client’s primary concern in a charging lien action is t he total amount of the fee it must pay for legal services, regardless of how participating lawyers choose to split that fee. Indeed, State Contracting was never clearly inform ed as to how Faro and Ross would split the contingent fee. After settling the patent infr ingement suit, State C ontracting notified the lawyers that it was prepared to pay the one-third contingent fee, and it presumed that Ross and Faro would sort out the proper divisi on of the fee. Ross’s arguments largely overlook that fact. Rather, Ross argues that he is entitled to a much larger share of the contingent fee, which would s ubject State Contracting to fees that would exceed its contractual contingent fee obli gation. We conclude that the district court properly rejected Ross’s arguments.
A Ross first argues that he is entitled to 75 percent of the total contingent fee under the engagement letter. We disagree. Four pages of the Florida Bar Rules were attached to the engagement letter, and t he engagement letter provided that Ross and Faro agreed to a “Contingent Fee, as set fort h in the current [attached Rules].” The attached rules specify several fee splitting arrangements that are allowable and some

05-1423,-1528 10arrangements that are mandat ed under certain circumstances. Although the engagement letter does not reference any of t hose specific provisions, Ross contends that the engagement letter contem plates that the fee will be split according to Rule 4- 1.5(f)(4)(D). That rule was among thos e attached to the engagement letter, and it provides that “in an action or claim for pers onal injury or for property damages or for death or loss of services resulting from per sonal injuries based upon tortious conduct of another,” the lawyer assuming “primary respons ibility” for the legal representation shall receive a minimum of 75 percent of the total contingent fee. As the district court explained, however, State C ontracting’s patent infringem ent suit is not based on personal injury or property damage. It is be tter characterized as an action for “damages arising in the commercial litigation context,” wh ich is another type of suit referred to in the rules. The comment to t he rules specifically notes that Rule 4-1.5(f)(4) (i.e., the 75 percent requirement) does not apply to commercial litigation. We conclude that the contra ct does not provide the basis on which the fee was to be split. The general reference in the engagement letter to the Florida Bar Rules does not specify or incorporate by reference any particular division of fees between Ross and Faro. By the terms of the contract, all t hat State Contracting agr eed to was to pay onethird of its recovery as a contingent fee for the legal services provided by Faro and Ross. Thus, the district c ourt did not err by rejecting Ross’s assertion that the engagement letter entitles him to 75 perc ent of the contingent fee.
B Ross next argues that he is ent itled to the entire conti ngent fee contemplated in the engagement letter. In support of that argument, Ross points to Rosenberg v. Levin ,

05-1423,-1528 11409 So. 2d 1016 (Fla. 1982), and Adams v. Fisher , 390 So. 2d 1248 (Fla. Dist. Ct. App. 1980). Ross reasons that under Rosenberg Faro is not entitled to recover any portion of the contingent fee contempl ated in Ross and Faro’s contra ct with State Contracting, and that under Adams any fee paid to Faro does not a ffect Ross’s right to recover the entire contingent fee under t he contract. Ross’s argument would subject State Contracting to a total fee exceeding the cont ingent fee to which it agreed (i.e., State Contracting would be required to pay Faro t he reasonable value of his services, and it would be required to pay Ross one-third of the va lue of its settlement). The decisions in Rosenberg and Adams do not support that outcome.
In Rosenberg , a lawyer contracted for a c ontingent fee but was discharged before the occurrence of the c ontingency. The Supreme Cour t of Florida held that “a lawyer discharged without cause is entitled to the reasonable value of his services on the basis of quantum meruit, but recovery is limited to the maximum fee set in the contract entered into for those services.” Rosenberg , 409 So. 2d at 1017. The court was concerned that if a discharged attorney could recover his contractual contingent fee, then a client who discharged his lawyer might be required to pay two contingent fees—one to the discharged lawy er and one to a substituted lawyer. That result, the court ruled, would be contrary to the “o verriding need to allow clients freedom to substitute attorneys without economic penalty.” Id. at 1021. Rosenberg did not address the issue of compensation for a substituted a ttorney; in particular, it did not address the situation in which two lawyers represent a client under a single fee agreement and one of the lawyers is discharged while the case is pending.

05-1423,-1528 12In Adams , a Florida court addressed the issue of compensation for a substituted lawyer and concluded that when a client enters into a new c ontingent fee contract with a substituted lawyer, that lawyer’s recovery is not necessarily offset by the quantum meruit obligation the client owes to a discharged lawyer. Adams , 390 So. 2d at 1251. Unless the substituted lawyer’s contract contemplates such an offset, the client is required to pay “fees in excess of the orig inal contingent fee, once to the discharged attorney in quantum meruit and again to the substituted attorney on a new contingent fee contract.” Id. Adams is critically distinguishable from the present case, however, because in this case Ross and State Contracti ng did not enter into a new contingent fee contract after Faro was discharged. Nor is there any evidence or suggestion by Ross that there was a reformation of the origi nal contingent-fee contract. Rather, based on the evidence of record, the c ourt found that after Faro’s discharge the parties continued to operate under the original engagement letter. Under that contrac t, State Contracting merely agreed to pay one-third of the value of its settlement in exchange for Faro’s and Ross’s legal services. The engagement letter thus included any fees owed for Faro’s services. We therefore reject Ross’s invita tion to reform the contra ct to increase State Contracting’s fee obligations beyond the amount to which it initially agreed. The district court properly held that Ross’s right to reco ver must be offset by Faro’s recovery. C Ross argues that even if his recovery must be offset by Faro’s fee, Faro’s proper fee is limited to the quantum meru it value of his services, which, according to Ross, is less than the $1,315,900 Faro received when Fa ro settled his attorney fee claim with

05-1423,-1528 13State Contracting. Thus, Ross argues, he shoul d be entitled to one-thir d of the value of the settlement less the reasonable value of Faro’s services. The problem with that argument is that the magistrate judge found that Faro and Ross agreed at the outset to split the contingent fee equally and never agreed to a different proportional split of the fee. Under the terms of his agreement, Ross is therefore limited to a one-half shar e of the total contingent fee, as the district court held. While there might be circumstances in wh ich an attorney in Ross’s position could reasonably seek a larger share of the c ontingency fee notwithstanding his initial agreement to an even split of the fee—such as where his co-counsel abandoned the joint venture or was discharged by the client on the client’s own initiative—this is not such a case. To the contrary, the result for which Ross argues would be inappropriate in this case because, as the magistrate judge found, Faro was discharged at Ross’s insistence and would not have been dischar ged otherwise. Moreover, Faro was discharged in June 2003, after more than seven years of representi ng State Contracting and less than four mont hs before the global settlement was reached in October 2003. As the magistrate judge obser ved, it would be inequitable under these circumstances to allow Ross to force the client to discharge Fa ro, to use Faro’s discharge as a ground for avoiding his agreement to split the fee equally with Faro, and then to claim a larger share of the contingent fee for himself.
D Finally, Ross argues that the “value of the settlement,” which was the basis for the contingent fee contempl ated in the engagement letter, includes—in addition to the value of any cash settlement—the value of any future royalties stemming from the

05-1423,-1528 14patents in suit. Based on that interpretation, Ross calculates the va lue of the settlement at nearly $16 million. We di sagree with Ross’s interpretation of the “value of the settlement.” First, it is unclear whether Ross disput es the magistrate judge’s determination that there is ambiguity in the phrase “val ue of the settlement.” His primary argument seems to be that even if t here is an ambiguity, the magistrate judge should have resolved that ambiguity based on “well settled Flor ida contract law that provides that the best evidence of a party’s contractual intent is the construction it puts on the agreement through its conduct.” As explained above, Ross believes that Faro was entitled to no more than 25 percent of the total contingent fee in this case. Thus, in Ross’s view, State Contracting’s $1.3 milli on settlement with Faro show s that State Contracting understood the total “value of the settl ement” to be nearly $16 million. That argument is wholly unpersuasive. T here is no evidence as to what led State Contracting to settle Faro’s charging lien fo r the amount they agreed upon. There is no reason to assume that the amount Faro wa s paid in the settlement was in any way based on State Contracting’s understanding of the “value of the settlement,” and Ross has not pointed to any evidence that Faro’s settlement was based on an assumption by State Contracting that the cont ract limited Faro’s fee to 25 per cent of the contingent fee. Ross also argues that the amended engagement letter supports his interpretation of the “value of the settlement.” In 1998, Faro and Ross suggest ed that State Paving Corp. (the previous owner of the patents in suit) should be joined as a plaintiff in the infringement suit. As a result, the engagement letter was amended in March 1998 to add State Paving Corp. as a client. T he amended engagement letter notes that “the

05-1423,-1528 15parties have previously agreed to a formula for the division of net royalties, and other net revenues realized by [State Contracting] from its exploitation and/or enforcement of such rights (e.g., licensing).” Ross argues t hat the quoted statement refers to the fact that the contingent fee incl uded a percentage of future roya lties. The evidence of record, however, shows that the statement refers to a compensation agreement between State Contracting and St ate Paving Corp. There is no evidence that Ross and State Contracting had “previously agreed to a fo rmula for the division of net royalties,” and there is ample evidence supporting the magistrate judge’s finding that that language in the amended engagement letter refe rred to an agreement between State Contracting and State Paving Corp. Moreover, the amended engagement letter provides that the “fee schedule set forth in the [original] Engagement Letter . . . shall remain in effect and the parties herein reaffi rm the acceptance thereof.” Thus, to the extent Ross argues that t he amended engagement letter modified the parties’ original understanding of the meaning of t he phrase “value of the settlem ent,” that provision in the amended engagement letter expressly refutes his argument. Finally, to the extent Ro ss argues that the phrase “value of the settlement” unambiguously includes future royalty payment s, we disagree. A charging lien “will attach only to the tangible fruits of the [l egal] services” for which fees are sought. Correa v. Christensen , 780 So. 2d 220 (Fla. Dist. Ct. A pp. 2001). Future royalty payments were not a tangible fruit of State Contracting’s settlement. In its settlement agreement with State C ontracting, the Florida Departm ent of Transportation merely agreed to list State Contracting’s patented design as an acceptable standard for its contractors to use. The agreement provides t hat if any contractor chooses to use State

05-1423,-1528 16Contracting’s patented design, any royalty f ees will be paid by that contractor, and not by the Florida Department of Transporta tion. Ross has provided no plausible explanation as to how that clause in the settlement agreem ent amounts to a tangible fruit of the litigation, or how one might value that benefit for purposes of awarding some portion of the benefit as a contingent fee to Ross. Florida law provides that it is unjust to hold a client liable for additional attorney fees based on a contract term that is ambiguous. Arabia v. Siedlecki , 789 So. 2d 380, 383 (Fla. Dist. Ct. App. 2001) (“An attorney mu st be clear and precise in explaining the terms of a fee agreement. To the extent the contract is unclear, the agreement should be construed against the attorney. ”). Here, the evidence of record indicates that at the time the engagement letter was executed, no one—not even Ross—contemplated that the “value of the settlement” included future royalty payments. Indeed, Ross did not propose his current interpretation of the phrase until after the litigation had ended, when he commented to State Contracting that Faro had an “interesting take” on the “value of the settlement” language in the engagement letter. Thus, we conclude that the district court properly limited the value of the settl ement to $8 million, which was the cash settlement State Contracting received from the Florida Department of Transportation.
V Finally, Ross contends that the district court erred by determining that State Contracting was the prevailing party in Ro ss’s charging lien litigation and thus awarding attorney fees to State Contracting for its def ense of Ross’s claim. We affirm the district court’s decision in that regard.

05-1423,-1528 17The engagement letter contains a fee pr ovision expressly allowing Ross and Faro to recover attorney fees incurred as a result of any dis pute pertaining to the engagement letter’s fee arrangement. Ross and State Contracting both moved for attorney fees after the district court ent ered its final judgment in the charging lien litigation. The district court referred the motions to the magistrate judge, and subsequently adopted the magi strate judge’s findings and recommendations on the motions. The magistrate judge held that Flor ida law required that provision to be read as granting a reciprocal right to re covery of such attorney fees. See, e.g. , Ajax Paving Indus. v. Hardaway Co. , 824 So. 2d 1026, 1028 (Fla. Dist. Ct. App. 2002). That conclusion seems undisputed here. Florida courts treat such reciprocal provisions just like any contract provision, and thus will enforce the clause (i .e., by determining that one of the two parties prevailed) except in rare instances. In other words, the question is more “who prevailed” rather than “did someone prevail.” Under Florida law, the prev ailing party is the “party prevailing on the significant issues in the litigation.” Moritz v. Hoyt Enter., Inc. , 604 So. 2d 807, 810 (Fla. 1992). Here, the magistrate judge determined that t he significant issue in Ross’s charging lien litigation was the dispute over the meaning of “val ue of the settlement.” Ross contends that the significant issue was whether the engagement letter was an enforceable contract. However, the magistrate judge hel d that State Contract ing’s primary theory— both before and during the charging lien lit igation—was that the contract was enforceable but that the val ue of the settlement was lim ited to the $8 million cash settlement. We discern no abuse of discretion in that determination, or in the district court’s decision to award attorney fees to State Contracting.

05-1423,-1528 18Ross also argues that any award of attorney fees against him should be shared by Faro, since the court found t hat they were involved in a joint venture. We disagree. Whether or not Ross and Faro were joint v enturers or joint obligees, each pursued his own charging lien, on his own behalf. Faro settled his claim with State Contracting, and Ross pursued his through litigation. Thus, St ate Contracting’s attorney fees stemmed from Ross’s efforts to enforce his own char ging lien, not from efforts to enforce a charging lien on behalf of any joint venturer with whom he would share his award. In sum, we affirm the judgm ent as to the charging lien, and we affirm the district court’s award of attorney fees to State Contracting for its defense of Ross’s charging lien claim. Each party shall bear its own costs for this appeal.

05-1423,-1528 19NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit
05-1423, -1528 STATE CONTRACTING & ENGINEERING CORPORATION, Plaintiff-Appellee,

v. CONDOTTE AMERICA, INC. (formerly known as Recchi America, Inc.), THE MURPHY CONSTRUCTION COMPANY, THE HARDAWAY COMPANY, HUBBA RD CONSTRUCTION COMPANY, BALFOUR BEATTY CONSTRUCTION, INC.,

COMMUNITY ASPHALT CORPORATION and HANSON PIPE & PRODUCTS SOUTHEAST, INC. (formerly known as Joelson Concrete Pipe Company, Inc.) Defendants,

v. RICHARD S. ROSS, ESQ., Movant-Appellant. DYK, Circuit Judge , concurring-in-part and dissenting-in-part. I join the generally well-reasoned majority opinion except for Parts IV.C and V, from which I respectfully dissent. In part IV, the majority concludes that, even though Faro was discharged, he was still entitled to reco ver from the client fifty percent of the contingent fees under t he original agreement with Ross, rather than the quantum meruit value of his services. In tu rn, says the majority, Ross is only entitled to recover one-half of the contingent fee. The Florida cases make clear that in an action against the client (State Contracting) Faro, having been discharged by State Contracting without cause, was entitled to recover only the quantum meruit value of his services. See Rosenberg v.Levin , 409 So.2d 1016, 1017 (Fla. 1982); Adams v. Fisher , 390 So.2d 1248, 1250 (Fla. Dist. Ct. App. 1980). It follows under the Fl orida cases that Ro ss, who continued the work, was entitled to recover the remainder of the contingent fee in a suit against the client. See Adams , 390 So. 2d at 1251 (finding that where the client discharged the initial attorney, the second attorney was entitled to the contingent fee). In rejecting this approach, the majori ty relies on the agr eement between Faro and Ross to divide the conti ngent fee equally. I fail to see how that agreement can change the result under the Florida cases. T he Florida cases recogni ze that contingent fee arrangements often fail to deal explicitly with the possibilit y that a retained counsel may be discharged. See Rosenberg , 409 So.2d at 1017; Shupack v. Marcus , 606 So.2d 466, 467 (Fla. Dist. Ct. App. 1992); Adams , 390 So.2d at 1250. As noted, the default rule in Florida is that when an attor ney is discharged without cause, he is entitled to recover only the quantum meruit value of his services in a suit against the client. I see no reason why agreements among counsel as to the division of fees should be governed by a different default ru le, and the Florida cases do not suggest that they are. Moreover, the rule adopted in the Florida ca ses makes eminent sense. For example, here if Faro had been discharged one day afte r the agreement was reached and after performing six hours of work under it, it would be unfair in the extreme that Faro should nonetheless receive one-half of the contingent fee when Ross spent years of work fulfilling the service obligations under the agreement with the client. The court in Adams came to a similar conclusion where a client discharged his first attorney, with whom he had a contingent fee agreement, and then hir ed a second attorney under a separate

05-1423, -1528 2contingent fee agreement. 390 So . 2d at 1249-50. As to the first attorney’s fee, the court held: Upon discharge, the attorney has no right to collect his contingent fee. His fee is to be determined on a quantum meruit basis. To allow the discharged attorney to collect his contingent fee would be inequitable. It might cause the client to pay an ex cessive fee without receiving the full benefits of counsel in violation of the Florida Code of Professional Responsibility DR 2-106(A). Id. at 1250 (internal citation removed) (emphasis added). Significantly, Faro himself, in seeking dismissal of his charging lien pursuant to the settlement with State Cont racting, explicitly agreed t hat he would only have been entitled to quantum meruit recovery. R eply in Support of Fa ro’s Petition for Disbursement of Settlement Sum from Court Registry (Doc. 503) at 2 (“Florida law allows a discharged attorney on a contingen cy case to collect only quantum meruit whereas an attorney employed under a conti ngency contract gets the full contracted fee.”); id. at 4. The majority appears to agree that in some circumstances Ross would be entitled to the contingent fee less Faro’s quantum meruit recovery, but suggests that two circumstances here render that result inequitable, namely t he advanced stage of the litigation, and Ross’s effort to secure Fa ro’s discharge. I do not read the decision below as resting on these grounds, nor do the Florida cases suggest that the result should turn on such considerations. In any event, the facts here do not suggest that full recovery by Ross is somehow unfair. While only four months work remained, the work that Ross did without Faro’s a ssistance was substantial. After Faro was discharged, Ross handled the appellate proceedings in the case, including an oral argument before

05-1423, -1528 3this court. Ross was also responsible for preparing the case for trial, on the eve of which, the client decided to settle. Moreover, the desire to terminate the relationship between Faro and Ross was mutual; they simply found it impossible to work together. Here the magistrate judge found that both Faro and Ross had attempted to persuade the client to discharge the other. Faro, for example, privately met wit h the client to suggest a replacement for Ross. When that attempt failed, Faro—wit hout the client’s approval—sent Ross a letter purporting to discharge Ross. For his part, Ross gave the client an ultimatum: the client would have to either dischar ge Faro, Ross, or the both of them. That Ross ultimately prevailed in convincing the client to discharge Faro in this situation should have no bearing on the allocation of fees. Under these circumstances, I see no basis for denying recovery of the full contingent fee to Ross less whatever Faro’s quantum meruit recover should have been (which amount may be significantly different from the amount that State Contracting agr eed to pay Faro in settlement). In summary, I respectfully dissent from Part IV.C. of the majo rity opinion. In my view, Ross is entitled to the full contingent fee less any quantum meruit recovery to which Faro was entitled. I would remand fo r a determination of t he correct amount of the fee award. As a result, I also dissent from Part V of the majority opinion, as I would vacate the district court’s award of prev ailing party fees to State Contracting.

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