159 So. 3d 358
Fla. Dist. Ct. App.2015Background
- Former Clients (CK Regalia, Abraham Cohen, La Mansion) hired Do Campo & Thornton on contingency fee agreements to pursue profit recovery from the Regalia Project; agreements provided tiered percentages depending on stage and recovery amount.
- The Former Clients later discharged Do Campo & Thornton and retained new counsel, who filed two underlying lawsuits in late 2013 (the Ongoing Action(s)).
- Thornton filed a notice of charging lien in the Ongoing Action on February 26, 2014 asserting entitlement to fees if recovery occurs.
- The Former Clients filed a separate declaratory action seeking a declaration that the charging lien (and the retainer under FDUTPA/ethical rules) was invalid and sought to discharge it.
- Do Campo & Thornton moved to dismiss as premature and asserted the proper forum to adjudicate a charging lien is the trial court presiding over the underlying action; trial court dismissed the declaratory complaint with prejudice after offering transfer/abatement, which the Former Clients declined.
- The Third District affirmed, holding the charging lien is contingent on a recovery in the underlying action, so declaratory relief was premature and the trial court is the proper forum to resolve validity and amount of a charging lien.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness of declaratory challenge to charging lien | Charging lien is invalid now; declaratory relief needed to evaluate settlement and rights | Charging lien enforcement depends on occurrence of contingency (recovery); challenge is premature | Dismissal affirmed — declaratory action is premature until recovery occurs |
| Proper forum to adjudicate lien validity/amount | Could litigate lien validity in separate declaratory action | Proper forum is the trial court presiding over the underlying action where the lien arose | Held for defendant — trial court for the underlying action is the proper forum |
| Effect on settlement decisions/prejudice | Plaintiffs: must know lien validity/amount to decide whether to settle | Defendant: permitting early collateral challenges would create unnecessary litigation; contingency must occur first | Court rejected prejudice argument; would allow premature litigation of every contingency-fee lien |
| Claim under FDUTPA/Rules of Professional Conduct invalidating lien | Retainer violated FDUTPA & ethical rules, so lien invalid | Such claims not ripe and failed to state a basis to discharge a contingent charging lien now | Trial court correctly determined those claims failed to state a proper cause of action at this time |
Key Cases Cited
- Sinclair v. Baucom, 428 So. 2d 1383 (Fla. 1983) (charging liens are equitable and require timely notice; enforcement depends on contingency)
- Rosenberg v. Levin, 409 So. 2d 1016 (Fla. 1982) (charging lien in contingency fee matters must await successful occurrence of the contingency)
- In re Warner's Estate, 35 So. 2d 296 (Fla. 1948) (charging liens should be enforced in the proceeding where they arose)
- Litman v. Fine, 517 So. 2d 88 (Fla. 3d DCA 1987) (same — trial court where underlying action pending is proper forum for lien disputes)
- State, Dep't of Envtl. Protection v. Garcia, 99 So. 3d 539 (Fla. 3d DCA 2011) (declaring that a declaratory action should not be entertained when an earlier filed suit can provide full relief)