Opinion
December 18, 1951. Rehearing Denied January 15, 1952.
Pace, Sigman Gilbert, Miami Beach, for petitioner.
Ward Ward, Miami, for respondents.
It appears by the record in this cause that Amedee J. Lamoureux and Claire D. Lamoureux married in the State of Massachusetts and moved to Miami, Florida, in March, 1929, and engaged in the laundry and dry cleaning business, where both parties worked in the business and it became very remunerative. They organized La Mont, Inc., a corporation, and jointly conveyed to it a considerable portion of their real and personal property accumulated during their cohabitation and work in the laundry and dry cleaning business. Unhappy differences arose between them which resulted in bitter and acrimonious litigation over their accumulated property and domestic difficulties, which terminated in a divorce and alimony. We have, during the past few years in this Court, ruled on different phases of the litigation brought here. The rights of the parties were finally adjudicated and placed at rest by an order of this Court in Lamoureux v. Lamoureux, 157 Fla. 300, 25 So.2d 859.
After the entry of the divorce decree partition suits were filed, which were consolidated by an order dated October 31, 1947. Thereafter, on January 30, 1951, Amedee J. Lamoureux and Claire D. Lamoureux signed a stipulation which apparently terminated several years of litigation. (Tr. 12-15). Claire D. Lamoureux was plaintiff in the partition suits and her attorneys were awarded a fee in the sum of $12,500. On appeal here the allowance was affirmed. Her counsel were paid in the divorce litigation the further sum of $5,764.30. See Lamoureux v. Lamoureux, Fla., 46 So.2d 403. On or about November 8, 1950, Mrs. Lamoureux discharged counsel who had represented her for some four or five years in the litigation and thereafter employed attorney James G. Pace.
On July 5, 1951, Mrs. Lamoureux's former attorneys filed in the original cause of Lamoureux v. Lamoureux then pending in the lower Court their petition for an additional allowance of counsel fees and expense money. The petition is viz.:
"Ross Reinhardt and E.L. Lockhart, Attorneys at Law, show unto the Court that they have rendered extensive and valuable legal services to Claire D. Lamoureux, plaintiff in these consolidated causes, in connection with the aspects of this litigation other than partition. Under the provisions of a contract with the plaintiff Claire D. Lamoureux petitioners are entitled to attorneys' fees for legal services rendered the plaintiff Claire D. Lamoureux in connection with the matters other than the partition aspects of this litigation as follows:
"40% of all sums, whether cash or allowance of credit on:
"(a) All sums for support money and alimony from the defendant Amedee J. Lamoureux.
"(b) All sums representing Claire D. Lamoureux's adjudicated share of rents and profits from the laundry property.
"(c) All sums representing Claire D. Lamoureux's adjudicated participation in the security deposit paid to the defendants LaMont, Inc. or Amedee J. Lamoureux under the lease on the laundry property.
"20% of all amounts paid by or charged against the interest of Amedee J. Lamoureux on the mortgage indebtedness on the home property subsequent to April 28, 1947.
"All costs or expenses incurred by petitioners in behalf of Claire D. Lamoureux in connection with this litigation.
"Petitioners have already been paid by the said Claire D. Lamoureux the sum of $5764.31 on account of attorneys' fees paid under the terms and provisions of this contract for their services in other than the partition aspects of this litigation, and $646.90 for costs paid or incurred by petitioners up to June 3, 1950.
"Petitioners are entitled to a lien against Claire D. Lamoureux's share of the monies and property involved in this litigation for such amount as is found to be remaining due them under their contract with the said Claire D. Lamoureux.
"Wherefore, petitioners pray that this Court ascertain and determine the amounts remaining due them under their contract with the said Claire D. Lamoureux for attorneys' fees due petitioners for legal services rendered the said Claire D. Lamoureux in matters other than the partition aspects of that litigation and that they be granted a lien in the amounts so found to be remaining due them against Claire D. Lamoureux's share of the monies and property involved in this litigation."
Counsel for defendant-petitioner filed a motion, on various grounds, to strike the petition requesting an allowance of additional counsel fees, and one of the grounds being to the effect that no contract existed between Mrs. Lamoureux and her counsel which required her to pay additional counsel fees. The motion to strike was overruled and denied by the Chancellor in the order dated July 13, 1951. The Chancellor in the same order granted an allowance of $4,000 as additional counsel fees and the sum of $540 as legal expenses. The order so entered is challenged here on petition for an interlocutory writ of certiorari.
Pertinent here are the following excerpts from the challenged order:
"B. During the course of petitioners' representation of Claire D. Lamoureux they performed a large number of legal services for her which directly resulted in her recovery of both money and valuable property. The parties to this litigation and the subject matter of the recovery are still before this Court. There was received in evidence at the hearing a copy of a letter from petitioners to Claire D. Lamoureux delineating a schedule of contingent legal fees based upon percentage of recovery by petitioners for Claire D. Lamoureux. There was testimony offered that Claire D. Lamoureux withdrew from the registry of this Court a sum of money which petitioners had recovered for her and from this amount paid petitioners on account of legal services as hereinafter noted in accordance with this schedule of contingent fees as authorized in said letter. However, this letter does not appear to have been signed by Claire D. Lamoureux and this Court does not find sufficient evidence to establish petitioners' compensation for legal services on the basis of this letter, but this Court does find that Claire D. Lamoureux employed petitioners to perform legal services for her in addition to legal services involved in the partition aspects of this litigation, and while no express agreement may have been reached as to the amount of legal fees to be paid for the services rendered, the law implies a contract on the part of Claire D. Lamoureux employing petitioners to pay them reasonable compensation for their legal services.
* * * * * *
"D. Petitioners have heretofore received from Claire D. Lamoureux on or about June 2, 1950, $5764.30 as a payment on account of legal fees.
"E. Lengthy testimony was submitted on behalf of petitioners as to the nature and amount of legal services which they rendered Claire D. Lamoureux. Testimony was heard as to the reasonable value of such legal services and this Court finds on the basis of such testimony that a reasonable fee for petitioners' legal services to Claire D. Lamoureux, in addition to those involved in the partition proceedings, is $4000.00 (this being in addition to the sum of $5764.30 heretofore paid petitioners by Claire D. Lamoureux on account of legal fees.
"F. Petitioners likewise incurred or expended costs and expenses in behalf of Claire D. Lamoureux for which they have not been reimbursed, in the amount of $540.00."
Other provisions of the decree made the allowance of counsel fees and expenses in the sum of $4,540.00 a lien against Mrs. Lamoureux's home, other real estate and personal property and decreed the sale thereof if not paid within a period of 45 days after date of entry of the decree. It is not necessary to set out the remaining pertinent provisions of the decree.
The case of Scott v. Kirtley, 113 Fla. 637, 152 So. 721, 93 A.L.R. 661, was a suit in equity to recover an attorney's fee arising out of the following factual situation: Mrs. Scott retained attorney Kirtley in a professional capacity to secure for her a child's part in an estate in which she was interested and at the time she retained the attorney she was not in a position to pay a retainer or any other fee. Attorney Kirtley accepted the employment under the circumstances and through his skill, aid and professional services he obtained for his client, Mrs. Scott, real estate valued at $10,000. The attorney filed a suit in equity against Mrs. Scott and on final hearing Mrs. Scott was ordered to pay a reasonable fee for the services rendered, and additional thereto an equitable lien for the attorney was decreed on Mrs. Scott's property involved in the suit recovered for her in the litigation.
In the case of Knabb v. Mabry, 137 Fla. 530, 188 So. 586, it appears that the complaining attorneys rendered professional services to the Chicago Trust Company in foreclosing a mortgage or tax liens. A final decree was entered and counsel fees adjudicated at the sum of $9,662.59. The property was sold at a Master's sale under the final decree and the attorneys were paid $2,000 on their fee. The purchasers at the Master's sale leased the property to L. Knabb without payment of the balance on the attorney's fee. The timber was being cut by Knabb and removed from the land, when the attorneys in the original foreclosure by suit in equity prayed for an accounting and for an equitable lien against the property for the amount unpaid as counsel fees. We sustained here the decree below granting the accounting and the equitable lien. We said, 137 Fla. 537-538, 188 So. 589: "`We are of the opinion that where, as the result of services rendered by an attorney at law in suing for and recovering for his client certain real estate, the client has realized the real estate as fruits of the attorney's professional services, under an express or implied understanding on the part of both attorney and client that a reasonable attorney's fee would be charged, and would of necessity be payable out of the property realized by the client as a result of the successful efforts of the attorney in litigating for it, even in the absence of any express contract for a definite amount of fee, an equitable lien, based upon the fundamental maxim of equity that no one shall be unjustly enriched at another's expense, may be implied and declared by a court of chancery, out of general considerations of right and justice which must be applied to the relations of the attorney and client with reference to the fruits of the transaction, and the circumstance of their dealings with each other, with the understanding that the services of the attorney would be payable out of what the client should realize as a result of the successful efforts of the attorney. * * *'"
Other cases cited to sustain the decree below are viz.: Ward v. Forde, 154 Fla. 383, 17 So.2d 691; In re Warner's Estate, 160 Fla. 460, 35 So.2d 296; Greenfield Villages v. Thompson, Fla., 44 So.2d 679; Nichols v. Kroelinger, Fla., 46 So.2d 722. Our recent case of Stern v. Stern, Fla., 50 So.2d 119, involved a divorce, alimony, suit money and the wife's solicitors' fees and the home of the parties. The Chancellor below granted the divorce, decreed the home to be an estate by the entireties and awarded a fee of $1,500 to the wife's solicitors, and the final decree impressed a lien upon the wife's "undivided half interest in and to the home" for her solicitors' fees. We affirmed here the part of the decree granting the divorce but reversed the part of the decree which impressed a lien on "the home and furnishings" of the wife to secure the payment of her solicitors' fees. We further said: "There are cases in which an attorney's lien for services may be impressed and enforced in equity, as when his contract so provides or when he collects money and moves promptly to safeguard his lien, but such a lien ordinarily conveys no interest in the rem that may be enforced at law."
Respondents' petition praying for an additional allowance of counsel fees recites (Tr. 4): "Under the provisions of the contract with the plaintiff Claire D. Lamoureux, petitioners are entitled to attorneys' fees for legal services rendered the plaintiff Claire D. Lamoureux in connection with the matters other than the partition aspects of this litigation as follows:" 40% of all sums, whether cash or allowance of credit on: (a) All sums allowed for support money and alimony; (b) all sums received for rents and profits on the laundry property; (c) moneys paid under the lease of the laundry property. Other claims are itemized. It is to be observed that the plaintiffs-respondents alleged supra: a contract for legal services. If such a contract for the payment of fees for legal services rendered exists between the parties, as here alleged, the existence thereof, its terms, conditions, and nature under our judicial system is for the jury. Baruch v. Giblin, 122 Fla. 59, 164 So. 831.
It is well established law that where one employs an attorney to perform legal services, whether in a regular court procedure or otherwise, and there is not, at the time of such employment nor subsequent thereto, an express agreement between the parties as to the amount the attorney is to be paid for his services, the law under such conditions and circumstances, implies a contract upon the part of one employing such attorney, to pay him a reasonable compensation for his services. Stitt Co. v. Powell, 94 Fla. 550, 114 So. 375; McGill v. Cockrell, 88 Fla. 54, 101 So. 199.
The petition for interlocutory writ of certiorari is hereby granted and the challenged order is quashed without prejudice to whatever rights, if any, either of the parties may have in a court of law.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.