5D00-3727 Wilson v. Griffiths

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-3727

Case Date: 02/11/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002 KAREN H. WILSON, etc., Appellant, v. Case No. 5D00-3727 KATHLEEN ELIZABETH GRIFFITHS, Appellee. / Opinion filed February 15, 2002 Appeal from the Circuit Court for Brevard County, Lisa Davidson Kahn, Judge. John T. Barga, Tiffin, Ohio, and William Dallas Dauterman, Fostoria, Ohio, for Appellant. Michael F. Sutton of Morgan, Colling & Gilbert, P. A., Orlando, for Appellee. SAWAYA, J. Karen H. Wilson, individually and as natural guardian of her minor son, David Shaber, appeals the trial court's order granting Morgan, Colling and Gilbert's (Morgan) Motion for Approval of Settlement of Minor's Personal Injury Claim. Although Wilson raises several issues, the essence of her complaint is that the fees awarded to Morgan are excessive and the appropriate forum to adjudicate that issue is the Ohio court where the guardianship was established for Shaber. We disagree and affirm. Shaber, age fourteen and a resident of Ohio, was injured in an automobile accident in Brevard County, Florida, allegedly caused by Kathleen Griffiths. Griffiths was insured by

United Services Automobile Association (United) which issued a liability policy with limits of $100,000. Shortly after the accident, Wilson entered into a contingent fee agreement with Morgan to pursue claims on behalf of herself and her son. Morgan subsequently made demand upon United for payment of the policy limits and provided United with copies of the pertinent medical records. A few months later, Morgan again demanded the policy limits, but to no avail. Morgan subsequently wrote Wilson, informed her that no offer had been made, and requested authorization to file suit. Authorization was given by Wilson and suit was filed on behalf of Wilson and Shaber. Upon receipt of the complaint, United tendered the limits of Griffith's insurance policy. Morgan then wrote another letter to Wilson in which Morgan sought confirmation of her acceptance of the policy limits; advised Wilson to execute a release; and further advised her to establish a guardianship in Ohio for Shaber. Wilson hired an attorney in Ohio who obtained an Ohio court order appointing Wilson as the legal guardian of Shaber's property and letters of guardianship and provided copies thereof to Morgan. In the meantime, Morgan provided Wilson's Ohio attorney with a copy of the closing statement which reflected the gross settlement of $100,000 and payment of attorney's fees in the amount of $33,333.34 pursuant to the contract for fees which provided for a contingent fee of 33 1/3% of the sum recovered. Morgan filed a motion for approval of the settlement of Shaber's claim to which Wilson objected. Although she approved the $100,000 settlement offer, she specifically objected to the amount of the attorney's fees even though that was the amount required under the contract. Pursuant to a request from Wilson's Ohio attorney, Morgan supplied him with a copy of the 2

contingent fee contract but could not supply him with documents revealing the number of billable hours spent on the case because they were not kept given the fact that the contract was contingent. Morgan set the hearing on the motion for approval of the settlement and thereafter notified Wilson's Ohio attorney in writing, on two separate occasions, of the hearing date. Morgan also notified Wilson in writing of the hearing date and that she and her attorney could appear telephonically if they desired. At the hearing, the trial court approved the settlement and, at the request of Wilson and her Ohio counsel, reserved ruling on the amount of attorney's fees until both sides submitted briefs on the issue.1 After the briefs were submitted, the trial court issued its order approving the settlement of Shaber's claim and Morgan's attorney's fees, which were calculated pursuant to the contract at 33 1/3% of the amount recovered. The trial court ordered that the settlement funds be disbursed according to the motion for approval of settlement and that Shaber's portion of the recovery be deposited into the Ohio counsel's trust account until the court in Ohio having jurisdiction over the guardianship decided how and where the minor's funds should be maintained. It is this order that Wilson appeals.

We find the argument by Wilson that she did not receive proper notice and an opportunity to be heard regarding the motion to approve the settlement, which included the request for attorney's fees, to be without merit. When Wilson's Ohio counsel requested that the trial court reserve ruling on the issue of attorney's fees at the hearing on September 11, 2000, the trial court complied with that request and reserved ruling on the attorney's fee issue until briefs were submitted by both parties. Only following the trial court's consideration of counsels' arguments at the hearing, the applicable statutes and case law, and review of the submitted memoranda and briefs of both parties, did the trial court hold that Morgan's fees were fair and reasonable. 3

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We will first determine which court - the Florida or the Ohio court - had jurisdiction to approve the settlement agreement. We conclude that the Florida court had jurisdiction to decide whether the settlement, including the amount of fees to Morgan, was in the best interest of Shaber. Parents are considered the natural guardians of their minor children and are authorized, without formal appointment or bond, to settle a claim on behalf of their children when the amount of the settlement is less than $5,000.

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