PIERO SALUSSOLIA, P.A., ETC., APPELLANT,
v.
GIANNI NUNNARI AND HOLLYWOOD GANG PRODUCTIONS, LLC, ETC., APPELLEES

Fla. 3d DCA | 2017-03-29
No. 3D16-436
Before ROTHENBERG, LAGOA, and EMAS, JJ.
215 So. 3d 156 Florida District Court of Appeal, Third District (2017) Positive Treatment
Cited by 2 cases

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Holding

The court held that the success fee provision was unenforceable due to indefiniteness, but the claims for retainer fees under the contract and quantum meruit were sufficiently pleaded.


Headnotes

[1] A contractual provision for a future bonus payment that fails to include essential terms is unenforceable as an agreement to agree.

[2] A motion for judgment on the pleadings should only be granted if the moving party is entitled to a judgment as a matter of law.

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Facts & Procedural History

A law firm was retained by clients to appeal a judgment and negotiate a settlement. The agreement had two fee provisions: a monthly retainer and a suc…

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Opinion of the Court
ROTHENBERG, J.

ROTHENBERG, J.

The plaintiff below, Piero Salussolia, P.A. (“the law firm”), appeals from the trial court’s order granting the defendants’, Gianni Nunnari and Hollywood Gang Productions, LLC (collectively, “the clients”), motion for judgment on the pleadings as to all counts of the complaint. We affirm the portion of the trial court’s order granting judgment on the pleadings as to the law firm’s claim against the clients for payment of a “success fee.” However, because we conclude that the complaint sufficiently pleads a cause of action for breach of contract for legal services rendered by the law firm under the retainer provision of the Attorney/Client Engagement Agreement (“the Agreement”), or in the alternate for quantum meruit, we reverse that portion of the or*157der granting judgment on the pleadings as to the portion of Count I pertaining to fees for services under the retainer provision of the Agreement and Counts II and III.

After a $13,200,000 judgment was entered against the clients, the clients retained the law firm to appeal the judgment, negotiate a settlement with the judgment creditors for a reduced amount, and/or pursue other measures to offset the judgment amount. The clients and the law firm entered into the Agreement, which contains two separate fee provisions—a monthly retainer fee provision to offset the fees incurred during the litigation and a success fee provision.1

The law firm filed a three-count complaint, seeking damages against the clients under three alternative theories—breach of contract (Count I), open account (Count II), and quantum meruit (Count III). The law firm alleged in its complaint that it performed under the Agreement by negotiating a settlement with the judgment creditors that reduced the judgment by millions of dollars. The law firm further alleged that despite the law firm’s performance under the Agreement and the tendering of invoices for the fees due under the Agreement, the clients have failed to pay a success fee or to fully compensate the law firm for its services under the Agreement.

The clients filed their answer, affirmative defense, and a counterclaim. The counterclaim seeks disgorgement of attorney’s fees paid to the law firm and an equitable accounting. Thereafter, the clients filed a motion for judgment on the pleadings. Following a hearing, the trial court granted the motion as to all three counts, finding that the law firm’s “claims are unsupportable, most significantly based upon John Alden Life Ins. Co. v. Benefits Management [Associates], Inc., 675 So.2d 188 (Fla. 3d DCA 1996).” This appeal followed.

“[I]n ruling on a defendant’s motion for judgment on the pleadings, all the allegations set forth in the complaint must be taken as true and all the allegations in the answer, which are automatically denied, must be accepted as false.” Tanglewood Mobile Sales, Inc. v. Hachem, 805 So.2d 54, 55 (Fla. 2d DCA 2001). Further, “[a] motion for a judgment on the pleadings should only be granted if the moving party is entitled to a judgment as a matter of law.” Briarwinds Condo. Ass’n v. Rigsbi, 51 So.3d 532, 533 (Fla. 3d DCA 2010).

A review of the complaint and the Agreement, which was attached to the complaint in the instant case, reflects that the law firm’s claims are based on the clients’ alleged failure to pay fees due under the Agreement—the fees for legal services rendered by the law firm under the retainer provision and a success fee. We agree with the trial court’s finding that the success fee provision, which fails to include essential terms, is unenforceable. See John Alden, 675 So.2d at 189 (holding that a contractual provision to negotiate a bonus payment in the future “was merely an ‘agreement to agree’ in the future about the bonus and hence unenforceable as a *158matter of law’). However, as to.the law firm’s claims based on the alleged unpaid attorney’s fees due under the retainer provision, we find that the allegations in the complaint were sufficiently pled to withstand the motion for judgment on the pleadings. Accordingly, we affirm the order under review as it pertains to the success fee, but reverse the order under review as it pertains to the alleged unpaid attorney’s fees due under the retainer provision of the Agreement.

Affirmed in part, reversed in part, and remanded for further proceedings.


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Cited By

  • Miguel v. Perez Escalona, 227 So. 3d 722 (Fla. 3d DCA 2017)
    …r the movant is entitled to judgment on the pleadings, all allegations in the non-moving party’s complaint must be taken as true and all allegations in the moving party’s answer, which have been denied, must be taken as false. Salussolia v. Nunnari, 215 So. 3d 156, 157 (Fla. 3d DCA 2017). For the City to prevail at this stage of the proceedings, the pleadings would have to establish as a matter of law that none of the three engineers who received Perez Escalona’s emailed report was an “appropriate local off…

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