FRANK E. KUCERA, APPELLANT,
v.
JANE H. KUCERA, APPELLEE
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In this dissolution of marriage case, the Florida Fourth District Court of Appeal vacated a trial court order that directed payment of attorney's fees from funds held by the husband's original counsel to pay his additional counsel. The court held that absent a charging lien, a lawyer's disputed claim for fees must be pursued in a separate action at law rather than adjudicated within the dissolution proceeding itself.
The court held that the trial court erred in entering the fee order because, absent a charging lien, a lawyer's disputed claim for fees must be prosecuted in a separate action at law, and a charging lien (even when involved) generally attaches only to proceeds of a judgment, settlement, or recovered funds, not to funds held merely during the pendency of litigation.
[1] A lawyer's disputed claim for fees must be prosecuted in a separate action at law, absent a claim of a charging lien.
[2] A charging lien, in the absence of statute or contract, attaches to the proceeds of a judgment or settlement or to funds recovered by an attorney for a client.
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Join FLexlaw to unlock all legal intelligence“absent a claim of a charging-lien a lawyer's disputed claim for fees must be prosecuted in a separate action at law”
This establishes the core holding that disputed fee claims cannot be adjudicated within the dissolution proceeding itself
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Join FLexlaw to unlock all legal intelligenceDuring dissolution proceedings, the husband-appellant deposited monies with his original counsel. When the original counsel was to be called as a witn…
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PER CURIAM.
Upon due consideration of the briefs and the circumstances reflected in the record on appeal we are of the opinion that the trial court erred in entering its order disbursing attorney’s fees to the appellant-husband’s additional counsel.
Appellant had previously deposited certain monies with his original counsel of record during the pendency of dissolution proceedings. As it appeared that original counsel was to be called as a witness at the final hearing appellant found it necessary to secure additional counsel. Subsequently, additional counsel filed a motion for relief of counsel and attorney’s fees. Pursuant thereto the trial court entered an order adjudicating the amount of the attorney’s fees and directing that such fees be paid from funds held by appellant’s original counsel.
According to the established case law in Florida, absent a claim of a charging-lien a lawyer’s disputed claim for fees must be prosecuted in a separate action at law. Cristiani v. Cristiani, 114 So. 2d 726 (Fla.App.2d 1959); Chaachou v. Chaachou, 122 So. 2d 24 (Fla.App.3d 1960); Worley v, Phillips, 264 So. 2d 42 (Fla.App.2d 1972); Weksler v. Stamatinos, 314 So. 2d 616 (Fla.App.3d 1975); see also 3 Fla.Jur., Attor neys at Law, § 69, et seq. Moreover, even where a charging lien is involved, in the absence of statute or contract providing otherwise, the lien attaches to the proceeds of a judgment or settlement or to any funds recovered by an attorney for his client so that disbursement is contingent upon such circumstances. 3 Fla.Jur., supra, §§ 76, 77.
Accordingly, the order disbursing attorney’s fees is vacated and set aside and the cause remanded for such other proceedings as are consistent herewith.
WALDEN, C. J., and CROSS and MA-GER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Litman v. Fine, 517 So. 2d 88 (Fla. 3d DCA 1987)….Fla.L.Rev. at 60, where there are no proceeds of the judgment, there is nothing to which a lien may, as a practical matter, attach. See Pasin v. Kroo, 412 So. 2d 43 (lien may issue only if attorney has in fact recovered proceeds); Kucera v. Kucera, 330 So. 2d 38 (Fla. 4th DCA 1976) (noting that money deposited by client with his attorney during pendency of dissolution action would not be proper subject of charging lien as not being proceeds of a judgment).5 [*93] If, then, the attorney has obtained a favora…
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Conroy v. Conroy, 370 So. 2d 1188 (Fla. 2d DCA 1979)…has no authority, absent a claim for a charging lien, to enter an order or judgment requiring a party to pay his or her attorney for representation during that proceeding. Cristiani v. Cristiani, 114 So. 2d 726 (Fla. 2d DCA 1959); Kucera v. Kucera, 330 So. 2d 38 (Fla. 4th DCA 1976); Chaachou v. Chaachou, 122 So. 2d 24 (Fla. 3d DCA 1960). The reasons for this rule become obvious in a case such as the present one where a litigant finds herself in an adversarial relationship with her own counsel concerning his…
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Yavitz v. Martinez, 568 So. 2d 103 (Fla. 3d DCA 1990)…and the attorney has, in fact, recovered proceeds for his client. The lien may not issue if no proceeds have been recovered.” Pasin v. Kroo, 412 So. 2d 43, 44 (Fla. 3d DCA 1982) (citation omitted); see Litman, 517 So. 2d at 91-93; Kucera v. Kucera, 330 So. 2d 38, 38-39 (Fla. 4th DCA 1976). In the present case the trial court simply entered a charging lien for the full amount of the attorney’s fees and costs owed by the wife to the law firm, and imposed the lien against the “assets, estate and property” of t…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Khudourie Chaachou v. Fredericka Phillips Chaachou, 122 So. 2d 24 (Fla. 3d DCA 1960)
- Zadock E. Worley v. Phillips, 264 So. 2d 42 (Fla. 2d DCA 1972)
- State of Fla. ex rel. Deauville Realty Co., Inc. v. Cannon, 114 So. 2d 726 (Fla. 3d DCA 1959)
- Luise Cristiani v. Daviso Cristiani, 114 So. 2d 726 (Fla. 2d DCA 1959)
- Weksler v. Constantinos Stamatinos, 314 So. 2d 616 (Fla. 3d DCA 1975)