ANTHONY FELICE, APPELLANT,
v.
SUTHERLAND PULLEN LAW, PLLC, AND MELISSA FELICE, APPELLEES
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Anthony Felice appeals a trial court order imposing a charging lien on his homestead property to secure attorney's fees in his dissolution of marriage case. The court reverses the portion of the order imposing the lien on the homestead property, following Florida Supreme Court precedent that homestead property cannot be subject to a charging lien, but affirms the lien as to other property.
The court held that imposing a charging lien on homestead property is improper and unenforceable, regardless of whether the retainer agreement purports to authorize such a lien. The charging lien is upheld as to non-homestead property but reversed as to the homestead property.
[1] A waiver of the homestead exemption in an unsecured agreement is unenforceable.
[2] A charging lien cannot be imposed on a client's homestead property, even if the retainer agreement purports to waive the homestead exemption.
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Join FLexlaw to unlock all legal intelligence“a waiver of the homestead exemption in an unsecured agreement is unenforceable”
Establishes the controlling legal principle from Chames v. DeMayo that homestead exemption waivers cannot be enforced in attorney fee agreements
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Join FLexlaw to unlock all legal intelligenceAnthony Felice retained attorney Marsha Sutherland Pullen to represent him in a dissolution of marriage proceeding. The trial court awarded a charging…
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Anthony Felice appeals an order imposing a charging lien in favor of his attorney, Marsha Sutherland Pullen, for attorney’s fees incurred in connection with his dissolution of marriage proceedings. We reverse the order insofar as it grants a charging lien on the homestead property of Mr. Felice and affirm the order in all other respects.
In its order, the trial court awarded a lien in the amount of $88,567.60 in favor of the law firm, Sutherland Pullen Law, on all property awarded to Mr. Felice in the dissolution action, including his homestead property.1 This was held to be improper in Chames v. DeMayo, 972 So.2d 850 (Fla.2007). In Chames, the former husband’s attorney obtained a charging lien against him for work she had performed in his postdissolution action and the trial court applied the lien to the former husband’s homestead property. Id. at 852. The attorney argued that the lien was proper because the retainer agreement signed by the former husband provided as follows: “the client hereby knowingly, voluntarily and intelligently waives his rights to assert his homestead exemption in the event a charging lien is obtained to secure the balance of attorney’s fees and costs.” Id. 2
The Florida Supreme Court rejected the attorney’s argument and held that “a waiver of the homestead exemption in an' unsecured agreement is unenforceable.” Id. at 853. Therefore, it was improper for the trial court to grant the attorney’s charging lien on the former husband’s homestead property. Id.; see also Sass v. Sass, 988 So.2d 1135, 1137 (Fla. 4th DCA 2008) (holding that trial court erred in entering a final judgment on a charging lien allowing execution against the marital home); cf. Riveiro v. J. Cheney Mason, P.A., 82 So.3d 1094, 1097 (Fla. 2d DCA 2012) (concluding that, where there was no clause in retainer agreement providing that attorney could seek a charging lien against client, trial *561court erred in imposing a charging lien on any real property awarded to client in the dissolution judgment).
Accordingly, we reverse the order granting Sutherland’s motion for a charging lien insofar as it grants a charging lien on the homestead property of Mr. Felice.
Affirmed in part; reversed in part.
LaROSE and SLEET, JJ., Concur.
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Citator
Authorities Cited
- Chames v. DeMAYO, 972 So. 2d 850 (Fla. 2007)
- Kirsten L. Riveiro v. J. Cheney Mason, P.A., 82 So. 3d 1094 (Fla. 2d DCA 2012)
- Liliana M. Sass v. Sass, 988 So. 2d 1135 (Fla. 4th DCA 2008)