Opinion
No. 1D18-5053
01-31-2020
Donald Wayne PICKLE, Appellant, v. Emily D. HALE, an individual, Serena Pickle, et al., Appellees.
Lynn A. Brauer, Brauer Law Firm, PLLC, Santa Rosa Beach; and James Heath, Heath Law Firm, P.A., Destin, for Appellant. H. Guy Green, Green Law Firm, Marianna, for Appellees.
Lynn A. Brauer, Brauer Law Firm, PLLC, Santa Rosa Beach; and James Heath, Heath Law Firm, P.A., Destin, for Appellant.
H. Guy Green, Green Law Firm, Marianna, for Appellees.
Rowe, J. Donald Wayne Pickle appeals an order denying his motion for attorney's fees. Because Pickle's contingency fee agreement required proceeds from a recovery before payment was due and there was no recovery, we affirm.
In 2011, Pickle executed and delivered a promissory note and mortgage securing payment of $1,120,000 to Emily Hale to buy an apartment complex. Pickle stopped making regular payments on the note, so Hale took possession of the apartment complex and began collecting rents. She then filed a foreclosure complaint against Pickle.
A bench trial was held to determine the amount owed under the note and mortgage. Hale had presented her case in chief, but had not formally rested her case, when court was adjourned for the day. Before the court reconvened for the conclusion of the trial, Hale filed a notice of voluntary dismissal without prejudice.
Following the dismissal, Pickle's counsel, Mr. Heath, moved for attorney's fees and costs. The trial court heard arguments from the parties and a fee expert. The court found that Pickle was the prevailing party in the case because Hale voluntarily dismissed the case. But the court determined that no fees were payable under Heath's contingency fee agreement with Pickle. Under the agreement, Heath would receive "from the proceeds of recovery" twenty percent of the real property value, but not less than twenty percent of the value of the note. But "if no recovery [was] made," Pickle would not "be indebted to [his] attorneys for any sum whatsoever as attorney's fees."
The trial court reasoned that the agreement required "proceeds of recovery" before fees were payable and that no proceeds were recovered following the dismissal of the foreclosure action. Instead, the status quo before the lawsuit was restored—Hale continued to retain possession of the property and collect rents. So Pickle did not recover possession of the property, nor did he recover any rental income from Hale. Finding that Pickle made no recovery in the lawsuit, the trial court determined that no fees were payable to Heath under the agreement. The motion for attorney's fees was denied. This appeal follows.
Whether an attorney is entitled to fees based on a contract presents a pure question of law. Searcy, Denney, Scarola, Barnhart & Shipley, etc. v. State , 209 So. 3d 1181, 1189 (Fla. 2017). Our review is de novo. Id.
Pickle argues that the trial court misconstrued the phrase "proceeds of recovery" in the contingency fee agreement. We disagree. The contract requires satisfaction of a specific contingency before fees were payable—that there be "proceeds of recovery." The terms "proceeds" and "recovery" are not ambiguous and must be construed consistent with their ordinary meaning. Columbia Bank v. Columbia Developers, LLC , 127 So. 3d 670, 673 (Fla. 1st DCA 2013) ("[W]hen the language of the contract is clear and unambiguous, the contract must be interpreted and enforced in accordance with its plain meaning."). Here, there were no proceeds because there was no recovery. To show that he made a recovery under the contingent fee agreement, Pickle needed to identify tangible benefits from his attorney's services, such as a positive judgment or settlement. See LaVere-Alvaro v. Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A. , 54 So. 3d 1056 (Fla. 2d DCA 2011).
But Pickle received no tangible benefit from the voluntary dismissal. Instead, dismissal of the lawsuit left the parties as though no action had been brought. See Pino v. Bank of New York , 121 So. 3d 23, 32 (Fla. 2013) (quoting Janssen v. Harris , 321 F.3d 998, 1000 (10th Cir. 2003) ). Before the action was filed, Hale took possession of Pickle's properties, assumed management of the properties, and collected rents. After the action was dismissed, Hale did not restore possession and management of the properties to Pickle. Nor did Hale return any rental income to Pickle. Hale's mortgage remains a recorded lien on Pickle's properties. Pickle's debt was not reduced or eliminated, and title to the property was not altered in any way. In short, Pickle recovered nothing.
Additionally, Heath acknowledged that another lawsuit had been filed to return possession of the property to Pickle because Hale refused to relinquish possession. Heath admitted at the hearing that he had not recovered "anything to date" for Pickle. On these facts, the trial court did not err in finding that there was no recovery under the contingency fee agreement. The order denying the motion for attorney's fees is AFFIRMED.
In that case, the trial court entered an order granting Hale's motion for summary judgment. The court found that Pickle defaulted on the mortgage and that Hale was entitled to take possession of the property and collect rents. See
Lewis and B.L. Thomas, JJ., concur.
Pickle v. Hale , 1D19-4221 (Fla. 1st DCA 2020).