PIERRE BERRYER, APPELLANT,
v.
STEPHEN G. HERTZ, APPELLEE
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In this legal malpractice case, the trial court awarded attorney's fees to the defendant attorney both for prosecuting a counterclaim for unpaid fees and for defending against the malpractice action. The appellate court affirmed the defendant's right to recover fees under the retainer agreement but modified the judgment to award the defense fees directly to the defendant rather than to his counsel of record.
The court affirmed that the defendant is liable for attorney's fees under the retainer agreement for both defending the malpractice action and prosecuting the counterclaim. However, the court modified the judgment so that the fees for defending the malpractice action are awarded directly to the defendant rather than to his counsel of record.
[1] A prevailing party in litigation arising out of an attorney-client relationship is entitled to recover reasonable attorney's fees and costs pursuant to a retainer agreeme…
[2] A trial court may award attorney's fees directly to a defendant for the defense of a malpractice action when provided for in the retainer agreement.
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Join FLexlaw to unlock all legal intelligence“In the event it is necessary to institute suit for the collection of fees and advances due to us by you, you agree to pay all costs and expenses necessitated thereby, including reasonable attorney's fees. Furthermore, in the event of any lawsuit in any way arising out of our relationship as attorney and client in which we shall be the prevailing party, then we shall be entitled to collect from you all costs and expenses necessitated by us in such litigation, including reasonable attorneys' fees.”
The retainer agreement provision that authorizes the recovery of attorney's fees in litigation between attorney and client when the attorney prevails
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Join FLexlaw to unlock all legal intelligenceThe plaintiff Berryer brought a malpractice action against attorney Stephen Hertz. Hertz answered and counterclaimed for the balance of his fee under …
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PER CURIAM.
This matter was commenced in the trial court as a malpractice action against the defendant attorney. The attorney answered and counterclaimed for the balance of his fee pursuant to the original retainer agreement and for attorney’s fees for defending the case in chief and prosecuting the counterclaim.1 The trial court awarded a fee directly to the defendant for prosecuting the counterclaim and awarded fees directly to counsel of record for the defendant in defense of the malpractice action. The appellant contended there was no liability for these fees, and that it was error in any event, to award the fees directly to counsel of record. We affirm as to the liability for fees. See Blue Lakes Apartments, Ltd. v. George Gowing, Inc., 464 So. 2d 705 (Fla. 4th DCA 1985); Erickson Enterprises, Inc. v. Lewis Wohl and Sons, Inc., 422 So. 2d 1085 (Fla. 3d DCA 1982); Quick and Reilly, Inc. v. Perlin, 411 So. 2d 978 (Fla. 3d DCA 1982); Brickell Bay Condominium Association, Inc. v. Forte, 397 So. 2d 959 (Fla. 3d DCA 1981); McDonald Air Conditioning v. 1041 Corporation, 251 So. 2d 319 (Fla. 1st DCA 1971).
We modify the judgment, however, so that the fees for defense of the malpractice action are awarded directly to the defendant.
Affirmed as modified.
. General Retainer Agreement states in part as follows:
”f) In the event it is necessary to institute suit for the collection of fees and advances due to us by you, you agree to pay all costs and expenses necessitated thereby, including reasonable attorney’s fees. Furthermore, in the event of any lawsuit in any way arising out of our relationship as attorney and client in which we shall be the prevailing party, then we shall be entitled to collect from you all costs and expenses necessitated by us in such litigation, including reasonable attorneys’ fees.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Gossett & Gossett, P.A. v. Mervolion, 941 So. 2d 1207 (Fla. 4th DCA 2006)…filing of a supplemental petition to enforce its charging lien, it met the requirement of “necessary to institute suit for the collection of fees and advances due to us by you.” Similar language was used in a retainer agreement in Berryer v. Hertz, 522 So. 2d 510 (Fla. 3d DCA 1988). In Berryer, the appellate court held that the attorney/defendant in a malpractice action not only could counterclaim for the balance of his fee pursuant to the original retainer agreement, but also was entitled under the agreemen…
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Stroud v. Indus. Fire & Cas. Ins. Co., 528 So. 2d 550 (Fla. 3d DCA 1988)…PER CURIAM. Affirmed. See Berryer v. Hertz, 522 So. 2d 510 (Fla. 3d DCA 1988); Yohanan v. deClaire, 435 So. 2d 913 (Fla. 4th DCA 1983); East Coast Insurance Company v. Cooper, 415 So. 2d 1323 (Fla. 3d DCA 1982); AGB Oil Co. v. Crystal Exploration and Production Company, 406 So. 2d 1165 (Fla. 3d DCA 1981); H…
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Vistaco, Inc. v. Prestige Props., Inc., 559 So. 2d 744 (Fla. 1st DCA 1990)…defense of the counterclaim is part and parcel of the original action, and plaintiff is entitled to a fee for defending the counterclaim as well. See also Tropical Resources, Inc. v. Roger, 524 So. 2d 1152 (Fla. 3d DCA 1988), and Berryer v. Hertz, 522 So. 2d 510 (Fla. 3d DCA 1988). Because the trial court erred in declining to award fees to appellant for successfully defending against some of ap-pellee’s counterclaims, we reverse and remand with directions to award fees for time spent on those matters. The…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blue Lakes Apts., Ltd. v. George Gowing, Inc., 464 So. 2d 705 (Fla. 4th DCA 1985)
- Brickell BAY Club Condo. Ass'n, Inc. v. Forte, 397 So. 2d 959 (Fla. 3d DCA 1981)
- Erickson Enters., Inc. v. Louis Wohl & Sons, Inc., 422 So. 2d 1085 (Fla. 3d DCA 1982)
- Quick & Reilly, Inc. v. Morton J. Perlin and Charlotte W. Perlin, 411 So. 2d 978 (Fla. 3d DCA 1982)
- McDonald Air Conditioning v. 1041 Corp., Inc., 251 So. 2d 319 (Fla. 1st DCA 1971)