JACK P. ATTIAS, APPELLANT,
v.
FAROY REALTY COMPANY, A FLORIDA CORPORATION, EMILIO FAROY AND ADRIANA FAROY, A/K/A ADRIANA CREEL, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that an attorney is not prevented from abandoning a charging lien and proceeding against former clients on ordinary contract principles.
Plaintiff attorney sued former clients for attorney's fees after filing charging liens. The trial court dismissed the action, apparently based on the …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Contract Principles cases and more on FLexlaw
[*106] PER CURIAM.
Jack P. Attias appeals a final order dismissing his action for attorney’s fees against defendants Faroy Realty Company, Emilio Faroy and Adriana Faroy. We reverse.
First, defendants’ motion to dismiss contended that Attias should have pursued attorney’s fees by means of charging liens Attias filed in the litigation in which he represented defendants. This was an affirmative defense which did not appear on the face of plaintiff’s complaint. This affirmative defense, therefore, could not be raised by motion to dismiss, for the motion required the court to consider matters outside the four corners of the complaint. See Fla.R.Civ.P. 1.110(d); Henry P. Trawick, Trawick’s Florida Practice and Procedure § 10-4, at 174 (1991 ed.).
Second, the charging lien is a security device which allows the attorney to recover fees by imposing a lien on a judgment or settlement obtained by his efforts for his client. See Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88, 90-92 (Fla. 3d DCA 1987), review denied, 525 So. 2d 879 (Fla.1988); see also Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1384 (Fla.1983).
Here the plaintiff alleges that there was an agreement to employ him as an attorney on an hourly basis. Plaintiff has elected not to pursue the charging liens.* Instead he has brought suit against defendants for breach of a written contract, quantum meruit, and account stated. We know of no rule which prevents the attorney from abandoning the charging lien and proceeding against the former clients on ordinary contract principles.
The order under review is reversed and the cause is remanded for further proceedings.
*
The record does not reveal the reason for this, but a logical explanation would be that there were no proceeds accruing to the benefit of Attias’ clients in the original actions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Harley L. Vause v. BAY Med. Ctr., 687 So. 2d 258 (Fla. 1st DCA 1996)…, Inc. v. Ellen Tracy, Inc., 648 So. 2d 253 (Fla. 2d DCA 1994); Board of County Commissioners of Polk County, Fla. v. Aetna Casualty and Surety Co., 604 So. 2d 850 (Fla. 2d DCA 1992), rev. denied, 613 So. 2d 2 (Fla.1993); Attias v. Faroy Realty Co., 609 So. 2d 105 (Fla. 3d DCA 1992). Even a relatively straightforward affirmative defense, such as one based upon the statute of limitations, is not a basis for dismissal unless the complaint affirmatively and clearly shows the conclusive applicability of the defen…
-
Mettler, Inc. v. Ellen Tracy, Inc., 648 So. 2d 253 (Fla. 2d DCA 1994)…d 881 (Fla.1972); Drew v. Knowles, 511 So. 2d 393, 395 (Fla. 2d DCA 1987). A motion to dismiss should not be granted on the basis of affirmative defenses unless the affirmative defenses appear on the face of the pleading. Attias v. Faroy Realty Co., 609 So. 2d 105 (Fla. 3d DCA 1992); Board of County Com’rs of Polk County, Fla. v. Aetna Cas. & Sur. Co., 604 So. 2d 850 (Fla. 2d DCA), review denied, 613 So. 2d 2 (Fla.1993). Applying these principles to the complaint, amended complaint and second amended complai…
-
Brickell Biscayne Corp. v. Morse/Diesel, 683 So. 2d 168 (Fla. 3d DCA 1996)…on Law & Practice § 3.12 (Fla.Bar, Dec. 1993). While the appellees asserted a statute of limitations defense to this aspect of the ease, the defense did not appear on the face of the complaints so as to justify dismissal. Attias v. Faroy Realty Co., 609 So. 2d 105 (Fla. 3d DCA 1992). Therefore, these claims as well must be tried after remand. (b) We do agree, however, that there is no merit to the claims for breach of contractual indemnity against Morse/Diesel or for the direct, %ow-assigned claims against b…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sinclair v. Baucom, 428 So. 2d 1383 (Fla. 1983)
- Elliot v. State, 517 So. 2d 88 (Fla. 3d DCA 1987)
- Litman v. Fine, 517 So. 2d 88 (Fla. 3d DCA 1987)