05-0490 ELIEZER GARCES V. MONTANO

SUPREME COURT CASES

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State: Florida

Court: Florida Southern District Court

Docket No: 3d05-0490

Case Date: 12/20/2006

Plaintiff: 05-0490 ELIEZER GARCES

Defendant: MONTANO

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006

JORGE ELIEZER GARCES, as CoPersonal Representative of the Estate of SILVANA LORENA LOPEZ, deceased, ROBIN ROSENBLUM, and PHILIP M. GERSON, Appellants, vs. EDUARDO MONTANO, as Co-Personal Representative of the Estate of SILVANA LORENA LOPEZ, deceased, and PODHURST ORSECK, P.A., Appellees.

** ** ** ** ** ** ** ** LOWER TRIBUNAL NO. 01-13969 CASE NO. 3D05-490

Opinion filed December 6, 2006. An Appeal from the Circuit Court for Miami-Dade County, Marc Shumacher, Judge. Robin Rosenblum; Arthur J. Morburger; Richard F. O'Brien, III, for appellants. Podhurst appellees. Orseck, P.A., and Stephen F. Rosenthal, for

Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge. GREEN, J.

Jorge Estate motion of to

Eliezer Silvana

Garces, Lorena

Co-Personal Lopez,

Representative orders

of

the his to

appeals

denying motion

apportion

attorney's

fees,

denying

his

recover costs from the decedent's minor children's individual recovery, granting Co-Personal Representative Eduardo Montano's motion to discharge Garces's attorneys' charging lien, and order dismissing the case with prejudice. We reverse these orders. Her

In 1998, Silvana Lopez died shortly after surgery.

husband, Garces, sought appointment as Personal Representative of her estate to investigate on behalf sons. possible of wrongful the death estate, father and and is

malpractice Silvana's appellee

claims

himself, boys'

two

surviving

The Garces

natural

Eduardo

Montano. 1

retained

attorneys

Robin

Rosenblum and Philip Gerson (collectively "Garces attorneys"). In 1999, shortly after they were retained, Garces's attorneys wrote to Montano, requesting his cooperation and informing him that the action was being pursued. Montano did not object and

told Garces that he did not intend to pursue the action on the children's behalf. two years. The In fact, Montano did nothing for the next Garces attorneys proceeded with extensive

investigations, pre-suit discovery and work on the case.

1

At the time of the birth of her children, and of her death, Lopez was separated from Garces and living with Montano. 2

The Garces attorneys consulted with ten medical experts and developed statutorily conducted. physicians the medical liability pre-suit case. Thereafter, proceedings all key the the were

mandated The and

discovery of

transcribed the

statements

defendant staff,

defendant

hospital's

medical

attending the decedent shortly before her death, were taken. The Garces attorneys sought production of hospital documents and the hospital operator logs. in affording the decedent These revealed significant delays the appropriate care for her

condition.

These pre-suit discovery steps culminated in the

production of the statutorily required medical expert affidavit, setting forth the grounds for the malpractice action. In

November 2000, the Garces attorneys also successfully filed a motion for the tolling of the two-year statute of limitations period. The complaint was filed in June 2001.

In February 2001, two and a half years after the Garces attorneys began conducting pre-suit investigations in the cause, and six months after the expiration of the statute of

limitations, the law firm of Podhurst Orseck, PA ("Podhurst"), informed the Garces attorneys by letter that they had been hired by Montano to pursue a wrongful death claim on behalf of the decedent's sons. Podhurst attached its December 2000 petition The Garces

tolling the statute of limitations to the letter.

attorneys responded that the lawsuit was already underway, and

3

that they would welcome Montano's participation. not reply to this letter. Montano later sought to be appointed as

Podhurst did

Co-Personal

Representative in the probate case. August 2001. 2

The court appointed him in

Podhurst filed a notice of appearance in the

wrongful death action in September 2001, three months after the filing of the initial complaint. significant expert. forward investigations, and Podhurst had not conducted any had only consulted with one

For quite some time, Podhurst was not prepared to move with the case and agreed that the Garces attorneys

should continue handling the pending discovery. In April 2003, Podhurst began conducting discovery in the case. The Podhurst and Garces attorneys collaborated in all respects. Podhurst conducted the depositions, and

pertinent

consulted with the experts retained by the Garces attorneys. Podhurst repeatedly requested help from Garces's attorneys in preparing the case for trial and up to the time of settlement. Significantly, the only medical expert qualified to testify at trial was the expert retained by Garces's attorneys and this expert was only disclosed as a trial witness at the insistence

2

The probate court appointed Montano as Co-Personal Representative finding that there was a potential for a conflict of interest between Garces and the decedent's sons based upon the legality of the marriage between the decedent and Garces and the possible allocation of damages. This ruling is not at issue on this appeal. 4

of

Garces's

attorneys.

Additionally, on the

Podhurst

raised at

their the

initial

settlement

demand

minors'

behalf

insistence of Garces's attorneys and based upon the economic analysis performed by the economic expert retained by Garces's attorneys. This resulted in a significantly higher recovery for

the children than Podhurst had originally anticipated. Between October 2004 and January 2005, a settlement was procured on behalf of the parties. settlement, the children received Under the terms of the $1,741,267.52, the estate

received $77,500, and Garces received $22,500.

The issue in the

case then turned to the allocation of attorney's fees and costs. In December 2004, Podhurst filed a motion seeking approval of the settlement and allocation of the proceeds. was silent as to fee allocation. The next This motion day, Garces's

attorneys filed a cross-motion for approval of the settlement, and for apportionment of fees and costs. settlement, and a contingent fee award The court approved the of 40% of the first

million dollars recovered, and 30% of the excess. reserved jurisdiction to allocate attorneys' fees

The court and costs.

The court set a hearing for January 25, 2005, to address the apportionment of fees issue. On January 19, 2005, Garces's attorneys filed an affidavit and a memorandum of law in support of the apportionment. The

affidavit detailed the attorney's extensive steps and work in

5

moving the case forward before Podhurst's involvement, and also their significant filed a involvement motion to thereafter. discharge the On January 21,

Podhurst

Garces

attorneys'

charging lien against the settlement proceeds of the children; a motion for apportionment of the fees; and a response to the Garces motion for apportionment of fees. In response to

Garces's motion for apportionment of fees, Podhurst basically asserted that Garces's attorneys had done little more than paper the file in an attempt to collect a fee, and was therefore not entitled to share in any fee from the minors' recovery. Notably

absent in this response, however, was any detailed recitation of Podhurst's presuit involvement to move the case forward. At the hearing on the fee allocation issue, Podhurst

essentially argued that the Garces attorneys were not entitled to any fee from the children's settlement because there was conflict of interest between the minors and Garces. denied motion Garces's to motion to apportion lien, and fees, ruled granted that The court Montano's Garces

discharge

the

the

attorneys were ineligible to receive any fee from the children's portion of the settlement. The $696,507.01 in fees from those

proceeds was awarded solely to Podhurst. In February 2005, attorney Rosenblum individually filed a motion to apportion and approve costs and memorandum of law. She also submitted an itemized statement of the costs incurred

6

by

the

Garces

attorneys

in

prosecuting

the

case,

including

expert's bills, expert consultation fees, filing fees and presuit deposition expenses. The motion sought to apportion the

costs among all the plaintiffs in proportion to the amounts awarded to them, under section 768.26, Florida Statutes, as the efforts of the litigation benefited all parties equally.

Additionally, many of the costs incurred resulted from requests from Podhurst. The court denied the motion for reimbursement of

costs from the minors' settlement. Two weeks later, Podhurst moved the court for its guidance regarding the dismissal of the suit as stipulated to in the settlement, in view of the fact that the Garces attorneys were now preparing individual fee motions. The court dismissed the

case with prejudice, which thereby precluded Garces's attorneys from filing their motions. We reverse the This appeal followed. orders entered in this cause

various

regarding disposition of the fees and costs, and hold that the trial court's conclusion that some conflict of interest

precluded the Garces attorneys from being compensated from the minors' recovery is not supported by the record before us or the law. We thus remand for further proceedings pursuant to Wiggins

v. Estate of Wright, 850 So. 2d 444 (Fla. 2003). As a threshold matter, we hold that there is no legal basis in the record to conclude that a conflict of interest existed

7

among

Garces

and

the

minor

children

on

which

to

base

the

disparate fee distribution. cause was that of

The only issue litigated in this Without common question, in all of the

liability. had a

decedent's

survivors

interest

determining

liability to the greatest extent possible in order to maximize each party's recovery. the allocation of the There was never any litigation regarding settlement proceeds, which might have

resulted in a conflict. 3

Compare In Re Estate of Catapane, 759 The facts raised by Podhurst, to

So. 2d 9 (Fla. 4th DCA 2000).

bolster its argument that a conflict existed, have no bearing on the issue in the medical malpractice case

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