4D08-1122-Ainslee R. Ferdie, Law Office s of Ainslee R. Ferdie v. Isaacson

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State: Florida

Court: Florida Fourth District Court

Docket No: 4D08-1122

Case Date: 05/06/2009

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2009

AINSLEE R. FERDIE, LAW OFFICES OF AINSLEE R. FERDIE, and FERDIE AND LONES, CHARTERED, Appellants, v. LAWRENCE ISAACSON; LORI ISAACSON; PROMISES 10, 11 & 12, INC., a Florida corporation d/b/a YOUR SALON; and PEGGY GREGOROVIC, Appellee. No. 08-1122 [May 6, 2009] CIKLIN, J. A law firm appeals a final summary judgment entered against its former client and two orders requiring the former client and the law firm itself to each pay 50% of the opposing party's attorneys' fees under section 57.105, Florida Statutes (2006).1 Because the trial court did not
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Section 57.105(1), Florida Statutes (2006), provides: [T]he court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim . . . in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim . . . when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.

conduct an evidentiary hearing or otherwise make an express finding that the law firm was not acting in good faith, we must reverse the trial court's order. We also reverse the trial court's assessment of costs against the law firm because section 57.105 does not permit it. Appellees Laurence Isaacson, Lori Isaacson, and Promises 10, 11, & 12, Inc. d/b/a Your Salon (collectively "the Isaacsons") hired Bernard Skuzinsky (who is not a party to this appeal) to work as a hair stylist and later promoted him to manager of the hair salon. According to Skuzinsky, in addition to making him manager, the Isaacsons verbally offered him a 50% ownership interest in the salon, which he accepted. The Isaacsons contended that at all relevant times, they had a 90% interest in the salon and a third party not involved in this action had a 10% interest. Mr. Isaacson subsequently terminated Skuzinsky in a written letter ("the termination letter") and enclosed two checks for hair styling and management services previously rendered. Th e termination letter expressly stated: "By depositing any and or all of these checks, you hereby release all monetary claims you or your wife, Janice Bates, may have in the past or in the future against us." Skuzinsky deposited both checks. Shortly after Skuzinsky's termination, the Isaacsons sold the salon. The sale did not result in a profit as all the proceeds went to pay a portion of the salon's substantial debt. In May of 2006, appellants Ainslee Ferdie, Esq., Ferdie & Lones Chartered, and Law Offices of Ainslee Ferdie (collectively "F&L") filed a three-count complaint o n behalf of Skuzinsky against the Isaacsons seeking a declaratory judgment regarding Skuzinsky's ownership interest, seeking an accounting, and alleging fraud in connection with the purported verbal ownership agreement. The Isaacsons filed a motion for summary judgment wherein they asserted the affirmative defense of accord and satisfaction and attached verified copies of the termination letter and of the cancelled checks cashed by Skuzinsky. On September 18, 2006, the trial court entered a final summary judgment of dismissal with prejudice based upon accord a n d satisfaction. Skuzinsky moved unsuccessfully for rehearing. Skuzinsky did not appeal the final summary judgment or the denial of rehearing. In the summary judgment motion (granted by the court on September 18, 2006), the Isaacsons' expressly reserved the right to seek section 57.105 attorneys' fees unless F&L and its client withdrew the complaint
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within twenty-one days.2 Obviously, Skuzinsky did not withdraw the complaint. After the court granted their summary judgment motion, the Isaacsons filed a motion to impose "sanctions" which included 57.105 attorneys' fees against both Skuzinsky and F&L. The trial court conducted two hearings and entered two orders on the Isaacsons' sanction motion. Following the first hearing, the court, on June 18, 2007, entered an order determining that the Isaacsons were entitled to attorneys' fees. In so doing, the court found that Skuzinsky knew or should have known that the complaint "[w]as not supported by the material facts necessary to establish the claim" or "[w]ould not be supported by the application of then-existing law to those material facts." The court's order directed the parties to appear for a second hearing on (1) "the amount of reasonable fees to be awarded" and (2) "whether the amount awarded is to be paid in equal amounts by [Skuzinsky] and his attorney." During the second hearing,3 the Isaacsons' counsel presented expert testimony pertaining to the reasonableness of the attorneys' fees sought. In response, F&L elicited testimony from its own attorney fee expert. Following F&L's presentation of expert testimony as to the reasonableness of the attorneys' fees

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