DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CHRISTOPHER N. LINK, P.A.,

Appellant,

v.

ANU RUT and TOMASZ RUT,

Appellees.

No. 4D12-4320

[May 20, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Ronald J. Rothschild, Judge; L.T. Case No. 06-

15685FMCE.

Christopher N. Link, P.A., Plantation, for appellant.

Robert J. Moraitis and Peter M. Raimondi of Robert J. Moraitis, P.A., 

Fort Lauderdale, for appellee, Tomasz Rut. 

MAY, J.

A law firm appeals an order that adversely determined the priority of 

its charging lien against an indemnification agreement in a final judgment 

of dissolution. The law firm argues the court erred in placing its charging 

lien behind the former husband’s right to indemnification for attorney’s 

fees against the former wife, pursuant to an agreement.

1 We disagree and 

affirm. 

After the former husband petitioned for dissolution of marriage, and 

the former wife answered and counter-petitioned, the former spouses

voluntarily dismissed the dissolution proceeding and entered into an

agreement. That agreement provided a right of indemnification to either 

spouse for attorney’s fees should one of them prevail in a challenge to the 

agreement. Alas, the reconciliation failed, and the proceedings began 

anew. 

1 The agreement was titled “Mediated Post-Nuptial Agreement,” but will be 

referred to as the “agreement.”
2

The former husband moved to reopen his petition and filed a new 

verified petition for dissolution of marriage. The former husband sought 

to enforce the agreement, including the right to indemnification for

attorney’s fees. 

The trial court entered an order substituting the law firm for the former 

wife’s prior attorney.2 Through the new law firm, the former wife filed her 

amended counter-petition, and attached the agreement. She then filed a

second amended counter-petition, requesting the court to set aside the 

agreement. 

The law firm began filing a series of motions to withdraw and to impose 

charging and retaining liens. After a hearing, the trial court upheld the 

parties’ agreement. The law firm then filed another motion to withdraw 

and impose charging and retaining liens, and a motion to establish the 

amount, enforce, and foreclose its charging and retaining liens. 

The trial court rendered the final judgment of dissolution, but deferred 

ruling on the law firm’s motion to establish the amount, enforce, and 

foreclose upon its charging and retaining liens. The trial court found the 

agreement valid and enforceable and awarded the former wife “all relief 

she [was] entitled to thereunder.” It also found that the former “[h]usband 

[was] entitled to a set off . . . as a result of his Motions for Attorneys [sic] 

Fees and Costs.” 

The trial court awarded the former husband $207,371.25 in attorney’s 

fees. The court heard the law firm’s motion to establish the amount, 

enforce, and foreclose its charging and retaining liens. This resulted in an 

order on the law firm’s motion and a final judgment against the former 

wife in favor of the law firm. Both the order and judgment contained the 

following language:

With regard to the priority of [the law firm’s] lien and/or lien 

rights compared to the Former Husband’s right to 

indemnification and hold harmless from the Former Wife as 

set forth in the parties’ . . . Agreement dated March 27, 2007, 

the Court finds that Former Husband’s lien and claims arising

out of the Agreement are superior in time and first in right to 

those of [the law firm]. The terms of the parties’ . . . Agreement 

were in place at the time [the law firm] was retained by the 

Former Wife.

2 The former wife’s first attorney filed his notice of charging lien. The trial court 

entered an agreed order for the first attorney’s charging lien. 
3

The law firm appeals the order determining the priority of its lien. It 

argues its lien had priority because it was a charging lien, relating back to 

the signing of the retainer agreement, which predated the final judgment 

of dissolution. The former husband responds that his right to 

indemnification is superior in time and right to the law firm’s charging lien

because it was established under the agreement, which predated the law 

firm’s retainer agreement. 

We review the trial court’s order and judgment for an abuse of 

discretion. See Ginsberg v. Keehn, 550 So. 2d 1145, 1148 (Fla. 3d DCA 

1989).

“‘The charging lien is an equitable right to have costs and fees due an 

attorney for services in the suit secured to him in the judgment or recovery 

in that particular suit.’” Rudd v. Rudd, 960 So. 2d 885, 887 (Fla. 4th DCA 

2007) (quoting Cole v. Kehoe, 710 So. 2d 705, 706 (Fla. 4th DCA 1998)). 

“Equity came into existence as a means of granting justice in cases 

wherein the law by its rigid principles was deficient. It has been truly 

called a court of conscience. It should not be shackled by rigid rules of 

procedure and thereby preclude justice being administered according to 

good conscience.” Degge v. First State Bank of Eustis, 199 So. 564, 565 

(Fla. 1941).

Here, the agreement was first in time, and provided:

26. ATTORNEY’S FEES: Should either party fail to abide by 

the terms of this Agreement, then the defaulting party will 

indemnify and hold the other harmless for all reasonable 

expenses and costs, including attorney’s fees and 

disbursements incurred, regardless of whether or not an action 

in court is filed, in successfully enforcing this Agreement or 

asserting or defending his or her rights hereunder as against 

the other party or third parties at the trial level and through 

all appeals as may be applicable.

26.1 In the event that either party, at any time, challenges the 

validity of this Agreement or seeks enforcement of it, then the 

prevailing party in any such proceeding shall be entitled to 

recover all of their costs and expenses, regardless of whether 

or not they are deemed “taxable” costs as well as all attorney’s 

fees, including appellate fees incurred by them from the nonprevailing party.
4

(Emphasis added).

The former husband and former wife entered into the agreement on 

March 27, 2007. The law firm began representing the former wife 

approximately eighteen months later in September 2008. Beginning 

fourteen months later, the law firm filed a series of motions to withdraw 

and to impose charging and retaining liens. On August 24, 2012, the trial 

court awarded the former husband $207,371.25 in attorney’s fees, 

pursuant to the agreement. On November 26, 2012, the trial court 

awarded the law firm a charging lien for $113,011.76 against the former 

wife.

The law firm undertook representation of the former wife subject to the 

terms of the one-and-a-half-year-old agreement, which included the 

indemnification language in paragraphs 26 and 26.1. It knew of the 

indemnification provisions because the agreement was the apex of the

parties’ dispute. In fact, it was the law firm who challenged the agreement 

on the former wife’s behalf, and lost.

A charging lien is an equitable right. See Rudd, 960 So. 2d at 887. It 

would be inequitable to give priority to a charging lien that became effective 

a year and a half after the agreement, and arose out of efforts to attack the 

very agreement upon which the former husband’s right to indemnification 

arose. Although the former husband was awarded indemnification for his 

attorney’s fees after the date of the law firm’s retainer agreement with the 

former wife, the former husband’s right to indemnification arose prior to 

the entry of the retainer agreement. The court did not abuse its discretion 

in finding the former husband’s claim “superior in time and first in right 

to those of” the law firm.

The rationale underlying the priority of a charging lien cannot equitably 

apply here. In Miles v. Katz, 405 So. 2d 750 (Fla. 4th DCA 1981), this 

Court stated:

The attorney fee lien has priority over judgments obtained 

against the client subsequent to the commencement of the 

attorney’s services. It is only inferior to judgments entered 

prior to the commencement of the services. . . . This result 

allows the attorney who created the funds to be paid for his 

services.

Id. at 752. A law firm should not be able to benefit from a charging lien 

that seeks to undermine an indemnification agreement that predates the 

retainer agreement.
5

The cases cited by the law firm are distinguishable. See Sinclair, Louis, 

Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 

1384–86 (Fla. 1983) (holding that an attorney was entitled to enforcement 

of his charging lien, but not in the context of a priority dispute); Shawzin 

v. Donald J. Sasser, P.A., 658 So. 2d 1148, 1150–51 (Fla. 4th DCA 1995) 

(holding that the trial court did not err in granting the law firm a charging 

lien where the requirements were met, even after the appellee withdrew 

from representation before a marital settlement, but not in the context of 

a priority dispute); Miles, 405 So. 2d at 750 (holding “that a charging lien 

is superior to a judgment lien obtained after commencement of an 

attorney’s services”).

We acknowledge the dissent, but disagree with its suggestion that our 

decision conflicts with Rebecca J. Covey, P.A. v. American Import Car Sales, 

944 So. 2d 1202, 1206 (Fla. 4th DCA 2006). There, it is true that we gave 

priority to an attorney’s charging lien over a subsequent judgment lien.

But, this case contains some important factual distinctions leading to a 

different result. 

First, the law firm actually lost its challenge to the agreement in this 

case. Second, the law firm failed to create a positive recovery from which 

it was entitled to priority of its lien. Third, the law firm moved to withdraw 

multiple times, long before the court ruled on its challenge to the 

agreement. See Rochlin v. Cunningham, 739 So. 2d 1215, 1216–18 (Fla. 

4th DCA 1999). 

Here, equity does not support the law firm’s request for priority of its 

lien over the opposing party’s judgment. Covey is factually 

distinguishable. Our decision does not conflict.

Nevertheless, we limit the prioritization to the unique facts before us. 

Were we to decide otherwise, it would encourage lawyers to challenge 

marital settlement agreements containing indemnification rights to 

prevailing party attorney’s fees with impunity, knowing that even if they 

lose, their charging lien would take priority over the agreement they 

challenged. This would defeat the very equity that liens were designed to 

protect. We therefore affirm.

Affirmed.

GERBER, J., concurs.

WARNER, J., dissents with opinion.
6

WARNER, J., dissenting.

I would reverse based upon Rebecca J. Covey, P.A. v. American Import 

Car Sales, 944 So. 2d 1202, 1206 (Fla. 4th DCA 2006), where we held that 

an attorney’s charging lien takes priority over a subsequent judgment lien 

for prevailing party attorney’s fees. In Covey, the judgment creditor was 

the bank which loaned money for the purchase of a car. The purchaser 

later filed suit based upon various theories of fraud and unfair and 

deceptive trade practices, claiming the vehicle was defective. She joined 

the bank, which later counterclaimed, suing for a deficiency after the sale 

of the vehicle. It sought attorney’s fees based upon a prevailing party 

provision in the loan agreements, mentioned in the concurring opinion. 

Although the trial court gave priority to the judgment creditor, our court 

reversed, concluding that the charging lien took priority. Thus, Covey is 

in direct conflict with the majority opinion. 

The majority distinguishes Covey on matters which did not affect the 

trial court’s ruling. In essence, the majority suggests that the facts of this 

case, unlike Covey, show that Link was not entitled to a charging lien, 

because he did not make any recovery for the wife and withdrew. Even if 

the facts supported that view, the trial court had already ruled several 

years earlier that Link was entitled to a charging lien and did not change 

its ruling when determining priority of the liens. Thus, the court did not 

grant priority on the basis that Link was not entitled to a charging lien.

The majority holds that a prevailing party attorney’s fees provision in a 

contract can create priority over a charging lien for representation 

commenced after the contract is made, even though a determination of 

who is the prevailing party cannot be made until the merits of the 

controversy is decided. I can find no authority to give such priority to a 

judgment lien based upon the date of the execution of a contract on which 

the judgment is based, rather than the date when the judgment was 

obtained. Although this is a post-nuptial settlement agreement in marital 

proceedings, prevailing party attorney’s fees have been held valid in such 

contracts based upon ordinary contract principles. Lashkajani v. 

Lashkajani, 911 So. 2d 1154, 1160 (Fla. 2005). There is no policy reason 

to provide for an exception to the general rule of priority in this type of 

contract over any other type which has a prevailing party attorney’s fees 

provision.

* * *

Not final until disposition of timely filed motion for rehearing.