# Third District Court of Appeal

State of Florida

Opinion filed November 4, 2015.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-2540

Lower Tribunal No. 13-11568

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### Emma Anderson,

Appellant,

vs.



### 50 State Security Service, Inc., etc., et al.,

Appellees.

An appeal from the Circuit Court for Miami Dade County, Rosa I.

Rodriguez, Judge.

Wasson & Associates and Annabel C. Majewski; Jeffery L. Allen, for

appellant.

Alberto M. Carbonell, for appellees.

Before WELLS, SALTER and FERNANDEZ, JJ.

SALTER, J.Emma Anderson, plaintiff in a personal injury case against 50 State Security

Service, Inc. (“50 State”), appeals a circuit court order regarding the disbursement

of the proceeds of her settlement with 50 State and its insurer. The underlying

dispute is between two lawyers, each claiming a right to receive a contingent fee

from those proceeds, and neither willing to negotiate an arrangement to share fees

with the other.

Although we affirm the trial court’s order on disbursement of the net

settlement proceeds to Ms. Anderson (after authorizing a recovery of costs and

payment of a 40% contingent attorney’s fee to the first lawyer to enter into a

written contingent fee contract with Ms. Anderson), we do so without prejudice to

the right of the second lawyer to claim fees and costs from the first lawyer on the

basis of quantum meruit, and in a separate action, should he elect to do so. We

express no opinion as to the ultimate disposition of any such separate action.

The Fee Agreements

In February 2013, Ms. Anderson (then 82 years old) was riding a MiamiDade Metrorail train. She was injured in an altercation with a Metrorail security

guard. A week later, she retained attorney Alberto M. Carbonell to pursue her

claim against 50 State. Ms. Anderson entered into a written retainer agreement

including these terms:

2. The Attorney shall be compensated for services rendered only

if a recovery is actually obtained for the Client

. The fee to be paid to

2the Attorney will be a percentage of the remaining balance of the

recovery after suit costs, depending on the stage at which the recovery

is received and the amount recovered:

. . . . (b) If the claim is settled after the filing of a complaint in a court

of law or administrative venue at any time through the trial of the

case, the attorney shall be entitled to forty [ ] percent of the first $1

million recovered.

. . . . 4. The Attorney may, with the consent of the Client

, associate

any other attorney in the representation of the above claims of the

Client

. If other attorneys are to be associated, the Client will be

informed of the fee-sharing arrangement that the Attorney makes with

the other attorneys. A new fee contract, which includes the new

attorneys, will be executed. The Client shall have the right to consult

with each attorney working on the case.

The agreement also provided that it would “continue in effect until the

services to be performed under it have been completed or until either party cancels

it by giving 30 days’ prior written notice to the other.”

Carbonell filed a complaint on behalf of Ms. Anderson in April 2013, and

commenced discovery and other pretrial proceedings. At Ms. Anderson’s request,

Carbonell also prepared a power of attorney giving Ms. Anderson’s son, Donald

Anderson, the power to sign documents and direct her lawyer in the case.

In August 2013, Ms. Anderson and her son retained attorney Jeffery Allen

as co-counsel. Carbonell and Allen were not affiliated in a law firm or other

professional relationship. Ms. Anderson and her son signed a second contingent

fee agreement which provided a 40% contingent fee to Allen. Carbonell was

notified of this arrangement by email and written notice, but Ms. Anderson, her

3son, Carbonell, and Allen did not modify Carbonell’s retainer agreement, terminate

that agreement, or otherwise specify an allocation of responsibility or fees in the

case against 50 State.

Later that month, Allen was added to the service list in the lawsuit, and both

Carbonell and Allen attended Ms. Anderson’s deposition as co-counsel. Allen also

participated in taking the deposition of the guard from 50 State. Carbonell filed a

pretrial catalogue and a motion in limine, but in 2014 he acknowledged in emails

that Allen would coordinate the witnesses for trial and take the lead in the case,

including mediation. Allen filed three additional documents before the September

2014 mediation.

The second session of mediation was successful, culminating in a substantial

settlement. The insurer required that the settlement check be made payable to the

trust account of both attorneys, Carbonell and Allen. Carbonell filed a motion to

compel disbursement of the settlement proceeds through his trust account, and he

requested approval for his 40% retainer and closing statement. Allen opposed the

motion, and the trial court heard the matter.

Testimony and argument at the hearing established that Ms. Anderson’s son

initially sought to retain Carbonell for his mother’s claim. When the son became

dissatisfied with the progress of the lawsuit, the Andersons approached Allen,

retained him, and notified Carbonell. The son testified that he did not terminate

4Carbonell as counsel because Carbonell was doing some free work for the son in a

different case, and Carbonell had shown the son what that work would cost. The

son was concerned that the free work would stop if they fired Carbonell.

The trial court held that it was Allen’s responsibility to have obtained a

written arrangement with Carbonell before entering the case as co-counsel and

performing services. Alternatively, the trial court noted, Carbonell might have

been terminated by Ms. Anderson and limited to a quantum meruit claim for his

work performed to the date of termination. The trial court approved Carbonell’s

settlement statement, including the disbursement of costs and the contractual 40%

contingent fee to Carbonell, with no payment to Allen. Ms. Anderson’s notice of

appeal followed, filed and served by Allen as her attorney. Allen individually was

not a party below, and his motion to intervene as a party here was denied.

Analysis

We affirm the trial court’s ruling because Allen’s second 40% contingency

would not adhere to the Rules Regulating The Florida Bar and would be

unenforceable. Chandris, S.A. v. Yanakakis

, 668 So. 2d 180, 186 (Fla. 1995).

Rule 4-1.5(f)(4)(D) of those Rules contemplates a division of contingency fees

when there are attorneys from separate firms, but it is incumbent on the lawyers to

come to an agreement for that allocation and to obtain client and court consent

5before the fees are disbursed. The comments to Rule 4-1.5 provide guidance

regarding that process.

Nonetheless, there are several communications in the record which evidence

Carbonell’s consent, if not request, for Allen to perform useful services and to

make payments for costs in the case. Although this appeal is not in the correct

procedural posture for a quantum meruit claim by Allen directly against Carbonell,

there is authority for such a claim for an attorney providing services but lacking a

contingent fee agreement. Lackey v. Bridgestone/Firestone, Inc.

, 855 So. 2d 1186

(Fla. 3d DCA 2003).

In the present case, Allen’s objection to Carbonell’s motion for

disbursement of all settlement proceeds through his trust account did not assert a

quantum meruit claim. As appellant, Ms. Anderson (and her son) established that

she need only pay one 40% contingent fee, but she has not established that only

Carbonell performed services or that Carbonell did not incur an obligation to

compensate Allen. Nor has Ms. Anderson established that it was error to permit

the settlement proceeds to be paid via Carbonell’s trust account, as he was counsel

of record and was never terminated.

While we express no opinion on the ultimate disposition of any separate and

subsequent claim by Allen against Carbonell, it does appear that The Florida Bar’s

non-binding elective fee mediation services might assist the attorneys in resolving

6their dispute. The order under review is therefore affirmed without prejudice to

Allen’s right to pursue a quantum meruit recovery against Carbonell in an

independent action.

Affirmed.

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