Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT LAWSON CARTER, as personal representative of the Estate of Hollie A. Carter, deceased, Appellant, v. WILLIAM RAMBAUM, P.A., Appellee. No. 2D22-219 March 10, 2023 Appeal from the Circuit Court for Hillsborough County; Vivian T. Corvo, Judge. Jennifer Erin Jones of McIntyre Thanasides Bringgold Elliott Grimaldi Guito & Matthews, P.A., Tampa, for Appellant. Kennan G. Dandar of Dandar & Dandar, P.A., Tampa; and William B. Rambaum of William Rambaum, P.A., Oldsmar, for Appellee. SMITH, Judge. In this probate case, Lawson Carter, as personal representative of the Estate of Hollie A. Carter, appeals the trial court's "Order on Petition to Disburse," ordering the disbursement of $135,000 pursuant to a contingency fee agreement, which represented an additional 5% of the judgment amount obtained by William Rambaum, P.A., on behalf of Hollie A. Carter and her sister in an unrelated civil suit. Because the additional work performed by Rambaum was not expended on behalf of the sisters related to any appeal or postjudgment proceedings required for recovery on the final judgment, the trial court erred in awarding an additional 5% under the fee agreement. We reverse. Hollie Carter and her sister entered into a contingency fee agreement with Rambaum retaining the firm to represent them in a dispute between the sisters and their brother over the ownership of the homestead of their deceased father—the Basswood property. Rambaum filed suit (the Basswood Civil Action) on behalf of the sisters to recover the Basswood property. Following a four-day jury trial, the siblings entered into an oral settlement resolving the Basswood Civil Action. A final judgment was entered on November 29, 2011, ratifying the parties' settlement and declaring the deed to the brother "null and void" and the sisters the "fee simple owners" of the Basswood property—subject to amounts due and owing Rambaum for its attorneys' fees and costs. It was agreed that Rambaum's attorneys' fees were to be paid from the proceeds from the eventual sale of the Basswood property. No appeals were taken from the final judgment in the Basswood Civil Action. However, before the property was sold, Hollie Carter passed away. Rambaum filed a statement of claim against her Estate for its legal fees and costs under the contingency fee agreement. Rambaum's claim was challenged by the Estate, resulting in two separate appeals decided prior to this case. In case 2D15-3239, the Estate challenged the probate court's final summary judgment in favor of Rambaum on its declaratory action determining that Rambaum's claim was a valid secured equitable 2 lien against the Basswood property; this court affirmed.1 In case 2D19- 3484, the Estate challenged the probate court's order determining Rambaum's claim for attorneys' fees was to be computed based on the gross recovery of the sale of the Basswood property—valued on the date the property sold; again we affirmed.2 When the Basswood property eventually sold for $2,700,000 in the fall of 2021, Rambaum claimed that in addition to the contingency fees of $809,752, it was entitled to additional attorneys' fees equal to 5% of the judgment for work performed on the two appeals that arose out of the probate case. Rambaum relied on paragraph 5(d) of the contingency fee agreement, which provides for compensation of "[a]n additional 5% of any recovery after institution of any appellate proceeding is filed or post[]judgment relief or action is required for recovery on the judgment." The Estate objected, and an amount equal to 5% of the judgment was held in escrow pending resolution of the dispute. The Estate sought to release the escrowed funds and filed a petition to disburse, arguing that paragraph 5(d) did not apply to the two appeals taken in the probate case where paragraph 5(d) was limited to recovery on the judgment in the Basswood Civil Action. The trial court disagreed and denied the petition, ruling that "[t]he various challenges taken by the Estate to defeat payment of the fees owed to Rambaum, in whole or in 1 Rambaum filed a motion for attorneys' fees in case 2D15-3239, which did not reference any rule, nor did it reference the contingency fee agreement at issue here. The motion was denied under Florida Rule of Appellate Procedure 9.400. 2 Rambaum did not file a motion for attorneys' fees in case 2D19- 3484. See Sch. Bd. of Alachua Cnty. v. Rhea, 661 So. 2d 331, 332 (Fla. 1st DCA 1995) (holding that where party failed to seek a fee in accordance with the appellate rules, the trial court is not authorized to make an award of appellate attorneys' fees). 3 part, constitute post[]judgment actions that necessitated substantial legal work by Rambaum to recover the fees owed to Rambaum under the judgment obtained in the [Basswood] Civil Action." The Estate's subsequent motion for rehearing was also denied, and this appeal followed. Attorneys' fees in Florida may only be awarded by a court when authorized by statute or agreement of the parties—otherwise known as the "American Rule." See Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145, 1148 (Fla. 1985); see also R. Regulating Fla. Bar 4-1.5(d) ("Contracts or agreements for attorney's fees between attorney and client will ordinarily be enforceable according to the terms of such contracts or agreements . . . ."). Here, we are asked to review the construction of the contingency fee agreement entered into by Rambaum and the sisters. Our review is de novo. See Searcy, Denney, Scarola, Barnhart & Shipley v. State, 209 So. 3d 1181, 1189 (Fla. 2017). We first review what exactly Rambaum was retained to do. The contingency fee agreement governing the attorney-client relationship between Rambaum and the sisters set forth the following: 1) Scope of Work – CLIENT hereby employs ATTORNEY to represent CLIENT in the following legal matter: Representation with regard to the recovery of [the Basswood property] formerly owned by William A. Billingsley, Sr. and conveyed to William A. Billingsley, Jr. in February, 2004. ATTORNEY shall have no responsibility for any other legal matter of CLIENT, except for those described above. According to the agreement, the scope of Rambaum's representation was limited to representing the sisters in the Basswood 4 Civil Action to recover their father's homestead property, which they claimed was wrongfully deeded to their brother. Paragraph 5(d) of the agreement governs the method of compensation and provides, in pertinent part: 5) Method of Compensation – CLIENT hereby agrees to compensate ATTORNEY in accordance with the following: CLIENT agrees to pay to ATTORNEY a fee, computed as a percentage of the gross amount recovered, whether as damages, prejudgment or post[]judgment interest, court costs, attorney fees, or any other basis, and contingent upon obtaining a recovery for client. The amount of the fee is based on the time and circumstances within which a recovery occurs, and the amount of the gross recovery. . . . .... (d) An additional 5% of any recovery after institution of any appellate proceeding is filed or post[]judgment relief or action is required for recovery on the judgment. (Second and third emphases added.) Accordingly, Rambaum was entitled to a percentage of the gross amount recovered for the sisters, which everyone agreed was a structured percentage of the sale price of the property pursuant to the contingency fee agreement. That agreement also provides that Rambaum would receive an additional 5% of the recovery obtained if any appeal was filed or any postjudgment or other action was required in order to obtain recovery on the judgment. The only recovery Rambaum obtained for the sisters was the recovery of the Basswood property pursuant to the 2011 final judgment. See Gallagher v. Manatee County, 927 So. 2d 914, 917 (Fla. 2d DCA 2006) ("Recovery means 'the obtaining of right to something by verdict or 5 judgment of a court of law.' " (quoting Recovery, Random House Unabridged Dictionary 1613 (2d ed. 1993))); see also Recovery, Black's Law Dictionary (11th ed. 2019) (defining "recovery" as "2. The obtainment of a right to something (esp. damages) by a judgment or decree"). Rambaum concedes that no appeals were necessary in order to secure recovery on the judgment of the Basswood property. Nor did Rambaum perform any postjudgment work on behalf of the sisters to obtain recovery on the judgment. To be sure, the contingency provided for in the agreement occurred when the 2011 final judgment declared the sisters the fee simple owners of the Basswood property. After that point Rambaum did not perform any work on behalf of the sisters to aid in their recovery on the judgment. See Brickell Place Condo. Ass'n v. Joseph H. Ganguzza & Assocs., 31 So. 3d 287, 290 (Fla. 3d DCA 2010) ("A contingency fee agreement is one in which the fee is made contingent on the outcome of the matter upon which the services are rendered." (citing R. Regulating Fla. Bar 4-1.5(f)(1))). Instead, Rambaum seeks recovery of its own attorneys' fees for litigating the issue of its right to an equitable lien against the Basswood property and as to the establishment of the amount. Neither of which are addressed or covered by the terms of the contingency fee agreement. See, e.g., Brooks v. Degler, 712 So. 2d 419, 421 (Fla. 5th DCA 1998) (holding that based upon the language of the contingency fee agreement the "contingency fee scheme only [applied] to 'a claim for damages' and the recovery from such a claim"). The contingency fee agreement is void of any terms providing for the recovery of attorneys' fees in the event of a dispute between Rambaum and the sisters regarding the agreement. Cf. Waverly at Las Olas Condo. Ass'n v. Waverly Las Olas, LLC, 88 So. 3d 386, 389 (Fla. 4th DCA 2012) (affirming judgment awarding attorney's 6 fees incurred in litigation and for the time spent litigating the amount of fees where the fee agreement authorized "attorney's fees for 'any litigation' between the parties under the agreement"). Moreover, the filing and securing of Rambaum's statement of claim against the Estate cannot in any way be construed within the scope of work contemplated in the agreement, which limited the scope of Rambaum's representation to obtaining a recovery for the client. Rambaum's statement of claim and all work and attorneys' fees expended in the probate case, including the two appeals, was work expended in recovering payment of the attorneys' fees pursuant to the contingency fee agreement—which was for the benefit of Rambaum alone. Accordingly, because Rambaum's efforts in the probate case fall outside the scope of the contingency fee agreement and were not performed in obtaining a recovery for the clients, the trial court erred in determining that Rambaum was entitled to the additional 5% attorneys' fees under the contingency fee agreement. Reversed and remanded. BLACK and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 7