DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PERLMAN, BAJANDAS, YEVOLI & ALBRIGHT, P.L.,

Appellant,

v.

ATLAS HOLDING CORPORATION,

Appellee,

No. 4D22-1827

_______________________________

KATIE PHANG, P.A., 

Appellant,

v.

ATLAS HOLDING CORPORATION,

Appellee,

No. 4D22-2048

_______________________________

ATLAS HOLDING CORPORATION, JACK T. KEISER AND PAMELA 

KEISER, AS TRUSTEES OF THE KEISER FAMILY LIVING TRUST 

DATED JANUARY 16, 2013, and JACK T. KEISER,

Appellants,

v.

TD BANK N.A.,

Appellee,

Nos. 4D22-2060 & 4D22-2223

_______________________________

[September 6, 2023]
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Consolidated appeals and Petition for Writ of Prohibition to the Circuit 

Court for the Seventeenth Judicial Circuit, Broward County; Carlos A. 

Rodriguez, Judge; L.T. Case No. CACE17-007675 (14).

Elliot B. Kula and W. Aaron Daniel of Kula & Associates, P.A., Miami, 

for appellant Perlman, Bajandas, Yevoli, & Albright, P.L. 

Douglas F. Eaton of Eaton & Wolk, P.L., Miami, for appellant Katie 

Phang, P.A.

Matthew P. Leto and Charles P. Gourlis of Leto Law Firm, Miami, and 

Raoul G. Cantero of White & Case LLP, Miami, for appellants Atlas Holding 

Corporation, Jack T. Keiser, and Jack T. Keiser and Pamela Keiser, as 

Trustees of the Keiser Family Living Trust Dated January 16, 2013.

Bruce S. Rogow, Cedar Mountain, North Carolina, and Tara A. 

Campion, Boca Raton, of Bruce S. Rogow, P.A., and William R. Scherer of 

Conrad & Scherer LLP, Fort Lauderdale, for appellee Conrad & Scherer 

LLP.

CONNER, J.

Appellee Conrad & Scherer LLP (“former counsel”) initially represented 

Appellants Atlas Holding Corporation, Jack T. Keiser, individually, and 

Jack T. Keiser and Pamela Keiser, as Trustees of the Keiser Family Living 

Trust Dated January 16, 2013 (collectively, “the clients”), as plaintiffs in a 

lawsuit. During the underlying suit, the clients discharged former counsel

and hired Appellants Perlman, Bajandas, Yevoli & Albright, P.L. (“PBYA”) 

and Katie Phang, P.A. (collectively, “successor counsel”). Former counsel

filed a charging lien in the underlying suit and sought to enforce it after 

successor counsel settled the case. This opinion addresses four 

consolidated appeals, all challenging the final judgment enforcing the 

charging lien.1

We affirm without discussion on the arguments raised by the clients in 

case numbers 4D22-2060 and 4D22-2223, challenging the fee award to 

former counsel. We agree with successor counsel, however, that the trial 

court erred in ordering successor counsel to disgorge fee payments. Thus, 

we reverse and remand in case numbers 4D22-1827 and 4D22-2048 for 

1 We previously issued orders consolidating the appeals for record and panel 

purposes. By virtue of the consolidation orders, case number 4D22-2223 was 

converted from a petition proceeding to an appeal. Because all four appeals arise 

out of the same final judgment, we issue one opinion to address all four appeals.
3 

revision of the final judgment consistent with this opinion. 

Background 

The Underlying Lawsuit 

The clients engaged former counsel to file the underlying lawsuit on a 

contingency fee basis. The engagement agreement provided that if the 

case settled after a motion to dismiss was denied but before summary 

judgment, former counsel would be entitled to 23% of the settlement. This

applied even if the clients switched counsel. 

After the engagement agreement was signed, former counsel filed suit 

against the defendants. Throughout its representation, former counsel 

incurred approximately 2,254.35 hours of work.

In September 2019, the clients sent former counsel a termination letter 

listing perceived shortcomings in its representation. The letter stated, 

however, that when the case settled, the clients would still pay former 

counsel’s fees and costs. Former counsel filed a charging lien. 

The clients then hired successor counsel pursuant to another 

contingency fee agreement. Eighteen months later, the parties settled the 

underlying suit for a confidential amount payable to the clients. 

Resolution of Former Counsel’s Charging Lien

Once successor counsel received the settlement funds, former counsel

sought to enforce its charging lien against the clients, asserting an amount 

due. By an agreed order, the trial court permitted successor counsel to 

disburse all settlement funds “in excess of the amount claimed by [former 

counsel] pursuant to its charging lien” but did not specify the dollar 

amount or percentage of the settlement to be withheld in escrow.2 

Successor counsel then withdrew from the case and the clients hired new 

counsel to litigate the charging lien. The charging lien matter was 

eventually set for trial. 

During the charging lien nonjury trial, former counsel argued it was 

terminated “without cause” and was responsible for the majority of the 

work done in moving the case forward. Former counsel argued it was 

2 Although not contractually required, successor counsel agreed to reduce its fees 

by $250,000 and to hold that amount in PBYA’s trust account to reimburse the 

clients for legal expenses the clients incurred in the charging lien litigation.
4 

entitled to its 23% contingency fee or, at least, to the value of its services 

(approximately $725,000 to $745,000). 

The clients argued former counsel was terminated “for cause” and was 

not entitled to any portion of the settlement because nothing former 

counsel did contributed to the eventual settlement. The clients also 

asserted, somewhat inconsistently, that “[n]obody’s disputing” that certain 

of former counsel’s actions “definitely . . . help[ed] the case,” and that the 

trial court should “give them credit for that.” The clients maintained, 

however, that former counsel could not prove its work contributed to the 

settlement. 

Successor counsel was not involved in the charging lien nonjury trial 

as a party and was not represented in those proceedings. 

After making credibility determinations and weighing testimony, the 

trial court found former counsel, not successor counsel, responsible for 

most of the legal work that led to the settlement. The trial court also found 

former counsel had shown the charging lien was valid and rejected the 

clients’ arguments to the contrary. The trial court then evaluated the 

appropriate amount due to former counsel under the charging lien. It 

found, upon weighing the totality of the circumstances, that former 

counsel was entitled to a sum certain3 in fees and costs. 

The trial court also raised concerns over successor counsel’s treatment 

of the settlement proceeds (despite the prior agreed order approving 

distribution of the settlement funds). It found the 23% contingency fee 

was a combined cap on fees for both former and successor counsel, and 

successor counsel had acted improperly in distributing the funds: 

The Court has asked several times . . . [for an] explanation as 

to why the client’s funds are being held in trust to pay [former 

counsel’s] lien and not the 23% attorney fees so the Court 

could make the decision as to the amount of the lien such that 

the client is not charged more than the maximum contractual 

rate of 23%. The total attorney fee amount paid by the client 

to all the lawyers is limited by the maximum amount 

allowed in the client’s Contingency Fee Agreement. . . . 

[Successor counsel] has not answered the question as to how 

the total attorney fees can exceed the contractual rate. 

3 The specific monetary amounts are not discussed in this opinion as they pertain 

to the confidential settlement figure, which is maintained as confidential by order 

of this Court. 
5

The trial court subsequently issued a detailed final judgment, ruling in 

favor of former counsel and chiding successor counsel for its distribution 

of the settlement proceeds. The trial court made the following findings:

[Former counsel] notified [the clients] [as to] the amount of its 

Charging Lien . . . plus costs subject to adjustment. . . . 

PBYA[4] held [that amount] plus costs in trust [as client funds]

pending the outcome of this Charging Lien action. . . .

The remainder of the settlement funds were disbursed to [the 

clients] and [successor counsel]. [Successor counsel] received 

23% of the settlement funds . . . . [Successor counsel] reduced 

its contingent fee by $250,000 to be used by [the clients] to 

defend against [former counsel]’s Charging Lien.

[The clients] received the remainder of the settlement funds 

less the amount held in trust by PBYA for [former counsel]’s 

Charging Lien, thus [successor counsel] penalized the client 

for discharging [former counsel] and hiring [successor 

counsel]. [Successor counsel] also placed the burden and cost 

of defending [former counsel’s] lien on [the clients] [when it] 

withdrew as counsel . . . before the hearing on [former 

counsel’s] lien.

The trial court accordingly ordered the disbursement of fees to 

successor counsel be “corrected” and redeposited in PBYA’s trust account. 

Once the funds were redeposited, the trial court ordered the clients be paid 

a full 77% of the settlement funds. Of the remaining 23%, former counsel

was to be paid a specific sum.5 Lastly, the trial court ordered successor 

counsel to send both retainer agreements to The Florida Bar for it to 

determine compliance with Bar rules.

The clients and successor counsel gave notice of appeal.

Appellate Analysis

4 While both PBYA and Katie Phang, P.A. have claims here, the funds were held 

in PBYA’s trust account.

5 The net effect of the order was that successor counsel received a specific, 

reduced sum for its services, plus any money remaining from the $250,000 

reserved to reimburse the clients for the legal fees and costs of the charging lien 

litigation. 
6

As we said above, we affirm without discussion on the arguments raised 

by the clients in their appeals of the fee award to former counsel. We 

therefore turn to successor counsel’s appeals.

“A party’s entitlement to attorneys’ fees is reviewed de novo.” Mineo 

Salcedo Law Firm, P.A. v. Cesard, 333 So. 3d 222, 227 (Fla. 4th DCA 2022)

(quoting De La Riva v. Chavez, 303 So. 3d 955, 958 (Fla. 4th DCA 2020)). 

In contrast, “[a] trial court’s calculation of reasonable attorney’s fees is 

reviewed for an abuse of discretion.” Nationstar Mortg. LLC v. Faramarz, 

331 So. 3d 738, 745 (Fla. 4th DCA 2021).

Successor counsel argues the trial court committed fundamental error 

by entering a judgment against successor counsel as a nonparty and 

depriving it of due process. We agree.

Entry of “a judgment against a nonparty is fundamental error.” 

Corredor v. Nichols, 342 So. 3d 793, 794-95 (Fla. 3d DCA 2022) (quoting 

Norville v. BellSouth Advert. & Publ’g Corp., 664 So. 2d 16, 16 (Fla. 3d DCA 

1995)). A denial of due process likewise “constitutes fundamental error 

that may be raised for the first time on appeal.” Chiu v. Wells Fargo Bank, 

N.A., 242 So. 3d 461, 464 (Fla. 3d DCA 2018).

Successor counsel was not a party at any point during the charging lien 

proceedings. The fact that it previously appeared as counsel of record for 

the clients in the underlying litigation does not change successor counsel’s

status as a nonparty. See Corredor, 342 So. 3d at 795 (reversing judgment 

awarding fees directly to attorney and holding counsel of record was “not 

a party to the underlying suit despite being the court appointed counsel 

for the receiver”); see also State Farm Mut. Auto. Ins. Co. v. Best Med. 

Treatments, Inc., 354 So. 3d 612, 614 (Fla. 3d DCA 2023) (holding statute 

authorizing award of attorney’s fees to a prevailing insured or beneficiary 

requires fees to be paid directly to insured or beneficiary, not to nonparty 

counsel). As successor counsel was not named or otherwise joined as a 

party in the charging lien action, the trial court could not directly order 

successor counsel to disgorge fees in favor of former counsel.

Former counsel contends on appeal that the trial court was exercising 

its sanction power in ordering disgorgement. See Levin, Middlebrooks, 

Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 

608-09 (Fla. 1994) (“[A] trial judge has the inherent power to do those 

things necessary to enforce its orders, to conduct its business in a proper 

manner, and to protect the court from acts obstructing the administration 

of justice.”). But if the trial court was indeed attempting to exercise its 
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inherent authority, it did so in violation of successor counsel’s due process 

rights. Successor counsel was not a party participant, did not appear as 

a party, was not represented in the proceedings, and had no notice that 

the trial court was considering entering an order for disgorgement of funds.

“As to the forfeiture or disgorgement of funds, an attorney is entitled to 

the same reasonable notice and opportunity to be heard, even if he or she 

is merely holding those funds as a retainer for legal services not yet 

rendered.” Weissman v. Braman, 132 So. 3d 327, 330 (Fla. 4th DCA 2014). 

In Weissman, a law firm representing the husband in an action for 

dissolution of marriage was ordered to disgorge assets the firm was holding 

for payment of the husband’s attorney’s fees, as part of the resolution of 

the wife’s motion for temporary attorney’s fees and costs. Id. We held that 

the law firm received inadequate notice and opportunity to be heard to 

satisfy due process:

[T]he wife’s motion did not suggest a need or intent to examine 

the reasonableness of the fees charged to the husband by the 

Firm. . . . [T]he Firm had no reason to believe that the trial 

court’s proceedings . . . could result in a disgorgement of 

funds that the Firm was holding, or that the trial court would 

inquire into the appropriateness of [its] fees . . . . Because the 

Firm was not granted sufficient notice, its right to be heard 

was substantially hindered in that it was not given the 

opportunity to gather or present supporting evidence.

Id. at 330-31 (footnote omitted).

The present case is comparable to Weissman. Nothing in the motion to 

enforce the charging lien suggested the payment to successor counsel was 

at issue, nor did former counsel seek sanctions during the trial. 

Accordingly, because successor counsel was not provided with sufficient 

notice that its fee payment was at issue, much less subject to 

disgorgement, its right to be heard was substantially hindered.

We also agree with successor counsel that the trial court misconstrued 

the law in ruling that the total fee, divided between both firms, could not 

exceed 23%. “The proper basis for awarding attorney’s fees to discharged 

attorneys and their successors is as follows: Discharged attorneys hired 

under a contingent fee contract are entitled to recover quantum meruit for 

their services, limited by the maximum fee allowable under the [the 

discharged attorney’s] fee agreement.” Lubell v. Martinez, 901 So. 2d 951, 

952-53 (Fla. 3d DCA 2005). “A substituted attorney, however, is entitled

to the full contingent fee provided for in the contract.” Id. at 953 (citing 
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Adams v. Fisher, 390 So. 2d 1248, 1251 (Fla. 1st DCA 1980)). A charging 

lien cannot attach to an attorney’s fee judgment which is based on work 

another law firm did. Law Offs. of David H. Zoberg, P.A. v. Rosen, 684 So. 

2d 828, 829 (Fla. 3d DCA 1996).

“This rule ensures the client the right to discharge an attorney at any 

time with or without cause, while at the same time making a client 

responsible for his or her actions.” Lubell, 901 So. 2d at 953. As the First 

District noted in Adams, “[a] client may end up paying fees in excess of the 

original contingent fee, once to the discharged attorney in quantum meruit 

and again to the substituted attorney on a new contingent fee contract[,]” 

but that “a client could contract to pay [the] second attorney a contingent 

fee less the fee due first attorney.” Adams, 390 So. 2d at 1251.

In Jones & Granger v. Johnson, 788 So. 2d 381 (Fla. 1st DCA 2001), the 

First District explicitly rejected the position taken by the trial court. There, 

a former law firm sought to recover its fees via charging lien after the 

successor firm settled the case. Id. at 382. Dissatisfied with its quantum 

meruit award, the former firm appealed, arguing “that the trial court 

should have divided the 25% contingent fee between it and [the successor 

firm] in proportion to the services each provided in obtaining the 

settlement[.]” Id. at 383. The First District disagreed, holding that the 

former firm had no claim against the contingent fee owed to the successor 

firm, but was simply entitled to a fee based upon quantum meruit. Id. 

The First District explicitly found its opinion to be consistent with 

Rosenberg v. Levin, 409 So. 2d 1016 (Fla. 1982), noting that Rosenberg 

only addressed former counsel’s recovery and did not set a ceiling for 

successor counsel as well. Jones & Granger, 788 So. 2d at 383-84. The 

First District also found that Afrazeh v. Miami Elevator Co. of America, 769 

So. 2d 399, 402 (Fla. 3d DCA 2000), was distinguishable because in that 

case, the client explicitly contracted with counsel to split the contingency 

fee with former counsel. Jones & Granger, 788 So. 2d at 384.

Former counsel cites Afrazeh as support for the trial court’s division of 

fees. But in this case, as in Jones & Granger, there is no evidence that 

either firm agreed to split the contingency fee. In the absence of an 

agreement to split successor counsel’s contingency fee, the trial court 

could not reduce successor counsel’s fee to allocate it to former counsel.

Accordingly, the trial court erred as a matter of law in holding the total 

fee amount was limited by the maximum amount allowed under either 

contingency fee agreement. The trial court likewise erred in holding 

successor counsel “improperly burdened [the client] with the cost of 

defending the lien.”
9

Conclusion

Based on the foregoing, the final judgment is affirmed as to the rulings 

pertaining to the award of fees to former counsel under its charging lien. 

It is reversed as to the disgorgement of fees and costs paid to successor 

counsel, and remanded for entry of a revised final judgment consistent 

with the foregoing. 

On remand, the trial court shall remove all mention of successor 

counsel’s disgorgement of fees and costs, as well as any adjudication of 

successor counsel’s right to fees. This opinion does not disturb the trial 

court’s determination of former counsel’s entitlement to fees and costs, or 

the amount due to former counsel from the settlement funds. Nor does

this opinion disturb the clients’ liability to former counsel for any fees or

costs associated with pursuing the charging lien. This opinion also does 

not disturb any agreement between the clients and successor counsel to 

reimburse the clients for fees and costs the clients incurred in defending 

against the charging lien.

Affirmed in part, reversed in part, and remanded with instructions.

KLINGENSMITH, C.J., and FORST, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.