Opinion
No. 99-1505.
Opinion filed December 29, 1999.
Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John A. Miller, Judge; L.T. No. 95-10362(12).
Gary M. Farmer, Jr. of Gillespie, Goldman Kronengold, P.A., Fort Lauderdale, for petitioner.
David B. Pakula of Fazio, Dawson, DiSalvo, Cannon, Abers, Podrecca Fazio, Fort Lauderdale, for Respondents-Carol Fiore and Robert Fiore.
Kenneth W. Morgan, and Hal B. Anderson of Billing, Cochran, Heath, Lyles Mauro, P.A., Fort Lauderdale for Respondent-Louis Benjamin, D.D.S., individually.
The Law Firm of Goldfarb, Gold, Gonzalez Wald, P.A. ("Goldfarb" or "the firm") appeals an order granting the plaintiffs' motion to dismiss a charging lien for attorney's fees. We treat the appeal as a petition for writ of certiorari.See Kerrigan, Estess, Rankin McLeod v. State, 711 So.2d 1246, 1247 (Fla. 4th DCA 1998).
Goldfarb represented the respondents, Carol and Robert Fiore, in a dental malpractice suit on a contingency fee basis. The representation commenced in June, 1994. The firm engaged in substantial discovery for the next three years. In April, 1997, the defendants made settlement offers which the Fiores rejected, against the advice of the firm. The relationship between the firm and the clients then deteriorated, culminating in the trial court's approval of the firm's withdrawal from the case in July, 1997.
The firm filed a charging lien for costs of $18,108.29, which the Fiores did not oppose. However, they challenged the firm's charging lien for fees and filed a motion to dismiss it.
At the hearing on the motion to dismiss, there was a conflict in the testimony. The Fiores denied that they had ever fired Goldfarb. Mr. Fiore testified that Goldfarb had given him and his wife an ultimatum: settle the case or the firm would withdraw. The Fiores did not settle and the firm withdrew, claiming that it had been fired. Mr. Fiore stated that he and his wife opposed the firm's motion to withdraw and wanted the firm to stay on the case, because they wanted to go to trial.
Attorney Goldfarb testified that while he spent a great deal of time trying to persuade the Fiores to accept the settlement offer, he never gave them an ultimatum that he would withdraw if they did not agree to settle. Because Mrs. Fiore was "extremely difficult to deal with," Goldfarb stated that her behavior "made it ethically impossible for me to continue with the case and continue representing the woman who had cursed me and said bad things about me and said I was not doing a good job on her file." Ultimately the Fiores retained a new lawyer and accepted the same settlement offer that Goldfarb had previously urged them to accept. Goldfarb contended that since the firm had worked diligently on the case for over three years and had been forced to withdraw due to irreconcilable differences with the clients, the firm was entitled to attorney's fees.
After taking the matter under advisement, the trial court granted the Fiores' motion to dismiss the charging lien for attorney's fees, without delineating its reasons.
This case is controlled by Faro v. Romani, 641 So.2d 69, 71 (Fla. 1994), which held that,
when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation. . . . We further hold, however, that if the client's conduct makes the attorney's continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating The Florida Bar, that attorney may be entitled to a fee when the contingency of an award occurs.
As framed by Faro, one issue in this case is whether Goldfarb voluntarily withdrew or was fired. Because the trial court made no specific findings of fact in its order, "this court must `accept the facts to be those shown by that evidence most favorable' to . . . the prevailing party." New Nautical Coatings, Inc. v. Scoggins, 731 So.2d 145, 145 (Fla. 4th DCA 1999) (quoting Southern Bell Tel. Tel Co. v. Broward County, 665 So.2d 272, 274 (Fla. 4th DCA 1995)). The trial court apparently concluded that the firm voluntarily withdrew, a conclusion that is supported by the Fiores' version of the evidence. The trial court was in the best position to assess the witnesses' credibility on this issue. Similarly, based upon Mr. Fiore's testimony, the trial court could have found that the firm's continued representation of the Fiores was not rendered "legally impossible" and that the Fiores' conduct would not cause the firm to violate an ethical rule of the Rules Regulating the Florida Bar if it continued to represent them. See Faro, 641 So.2d at 71; see Kocha Jones, P.A. v. Greenwald, 660 So.2d 1074, 1075 (Fla. 4th DCA 1995).
For these reasons, we do not find that the lower court departed from the essential requirements of law in dismissing the charging lien. Since the court was within its discretion to conclude that the Fiores did not discharge Goldfarb, cases such as Searcy, Denney, Scarola, Barnhart Shipley, P.A. v. Poletz, 652 So.2d 366 (Fla. 1995), and Doremus v. Florida Energy Systems of South Florida, Inc., 676 So.2d 444 (Fla. 4th DCA 1996), do not apply.
Finally, Goldfarb argues that the contingency for which the firm had been retained had already occurred by the time the firm withdrew. No settlement had occurred by the time Goldfarb withdrew. There was evidence in the record that the Fiores' new counsel performed additional work on the case before his clients ultimately accepted the settlement.
In sum, we do not find that the lower court departed from the essential requirements of law in concluding that Goldfarb had voluntarily withdrawn from representing the Fiores, that the contingency had not yet occurred, and that the clients' conduct had not made the firm's continued representation of the clients legally or ethically impossible.
The petition for writ of certiorari is denied.
WARNER, C. J., STEVENSON, and GROSS, JJ., concur.