Summary
In Berryer, the appellate court held that the attorney/defendant in a malpractice action not only could counter-claim for the balance of his fee pursuant to the original retainer agreement, but also was entitled under the agreement to attorney's fees incurred in defending the case and prosecuting the counterclaim.
Summary of this case from Gossett Gossett, P.A. v. MervolionOpinion
No. 87-611.
March 22, 1988.
Appeal from the Circuit Court, Dade County, Joseph P. Farina, J.
Robert P. Lithman, Miami, for appellant.
Stephens, Lynn, Klein McNicholas and Robert M. Klein and Debra J. Snow, Miami, for appellee.
Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
This matter was commenced in the trial court as a malpractice action against the defendant attorney. The attorney answered and counterclaimed for the balance of his fee pursuant to the original retainer agreement and for attorney's fees for defending the case in chief and prosecuting the counterclaim. The trial court awarded a fee directly to the defendant for prosecuting the counterclaim and awarded fees directly to counsel of record for the defendant in defense of the malpractice action. The appellant contended there was no liability for these fees, and that it was error in any event, to award the fees directly to counsel of record. We affirm as to the liability for fees. See Blue Lakes Apartments, Ltd. v. George Gowing, Inc., 464 So.2d 705 (Fla. 4th DCA 1985); Erickson Enterprises, Inc. v. Lewis Wohl and Sons, Inc., 422 So.2d 1085 (Fla. 3d DCA 1982); Quick and Reilly, Inc. v. Perlin, 411 So.2d 978 (Fla. 3d DCA 1982); Brickell Bay Condominium Association, Inc. v. Forte, 397 So.2d 959 (Fla. 3d DCA 1981); McDonald Air Conditioning v. 1041 Corporation, 251 So.2d 319 (Fla. 1st DCA 1971).
General Retainer Agreement states in part as follows:
"f) In the event it is necessary to institute suit for the collection of fees and advances due to us by you, you agree to pay all costs and expenses necessitated thereby, including reasonable attorney's fees. Furthermore, in the event of any lawsuit in any way arising out of our relationship as attorney and client in which we shall be the prevailing party, then we shall be entitled to collect from you all costs and expenses necessitated by us in such litigation, including reasonable attorneys' fees."
We modify the judgment, however, so that the fees for defense of the malpractice action are awarded directly to the defendant.
Affirmed as modified.