Opinion
No. 2D21-1518 & 2D21-2028.
10-07-2022
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. ATHANS CHIROPRACTIC, INC. a/a/o Micaela Falabella, Respondent.
Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Marsha M. Moses of Kubicki Draper, P.A., Tampa, for Petitioner. Kelly A. Blum and Philip A. Friedman of FL Legal Group, Tampa, for Respondent.
Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Marsha M. Moses of Kubicki Draper, P.A., Tampa, for Petitioner.
Kelly A. Blum and Philip A. Friedman of FL Legal Group, Tampa, for Respondent.
KELLY, Judge.
State Farm Mutual Automobile Insurance Company petitions this court for a writ of certiorari to quash orders compelling it to respond to discovery propounded by FL Legal Group, the law firm representing Athans Chiropractic, Inc., in this action. While the underlying lawsuit is one for breach of an automobile insurance contract, after learning that Athans and State Farm had already litigated and settled the claim in another lawsuit in which Athans was represented by a different law firm, FL Legal shifted the focus of Athans' lawsuit to a claim that FL Legal had a charging lien. FL Legal argued State Farm had violated its "lien rights" by settling the earlier litigation without protecting FL Legal's lien. FL Legal argued it was entitled to pursue its "lien rights" in this breach of contract lawsuit.
State Farm filed two petitions for writ of certiorari regarding two separate discovery orders. The petitions involve the same parties and discovery issues and were consolidated for purposes of these proceedings.
Because the lawsuit was for breach of an automobile insurance contract, FL Legal's initial discovery requests sought to compel State Farm to produce its claim and litigation files and underwriting information pertaining to Athans' claim. But when FL Legal opted to pursue its claimed charging lien rather than Athans' breach of contract claim, it added additional requests seeking information about the earlier settlement between Athans and State Farm. It claimed the challenged discovery was necessary to "ascertain on the record whether or not there is a [charging] lien violation." State Farm objected on several grounds including that the requested materials are protected by attorney-client and work product privileges, that the requested discovery was not relevant or likely to lead to admissible evidence because FL Legal had no lien rights, and that FL Legal was not a party to the action and was therefore not entitled to conduct discovery. The trial court allowed the discovery to go forward reasoning it needed more information about FL Legal's purported lien.
"[C]ertiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury" which cannot be remedied on plenary appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995); see also Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). "Discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence." Langston, 655 So. 2d at 94 (citing Brooks v. Owens, 97 So.2d 693, 699 (Fla. 1957)). While certiorari is not an appropriate remedy merely because a discovery order requires the production of irrelevant material, "a litigant is [not] entitled carte blanche to irrelevant discovery." Id. at 95. An order that entitles a party to carte blanche discovery of irrelevant material demonstrates the type of irreparable harm that may be remedied via petition for writ of certiorari. See id.; Root v. Balfour Beatty Constr. LLC, 132 So.3d 867, 869 (Fla. 2d DCA 2014). Because the orders here entitle FL Legal to discovery where the record affirmatively shows no basis for the imposition of a charging lien, we conclude that State Farm has appropriately invoked our certiorari jurisdiction. See Langston, 655 So. 2d at 95 (quashing the Fourth District's opinion to the extent it permitted discovery when it had been affirmatively established that the discovery was neither relevant nor would it lead to the discovery of relevant information); Walther v. Ossinsky & Cathcart, P.A., 112 So.3d 116, 118 (Fla. 5th DCA 2013) (quashing a discovery order seeking the production of apparently privileged documents to a law firm seeking the imposition of a charging lien where there was no basis for the lien); cf. Allstate Ins. Co. v. Am. S. Home Ins. Co., 680 So.2d 1114, 1117-18 (Fla. 1st DCA 1996) (granting certiorari and quashing an order allowing discovery of petitioner's privileged documents where the complaint failed to allege a cause of action entitling respondent to the discovery).
"The charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit." Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla. 1983) (emphasis added). FL Legal did not appear in the earlier suit—it was not even aware Athans had decided to use a different law firm to pursue the claim. Thus, it did not provide any services, nor did it secure a judgment or settlement in that suit. In other words, the settlement in the earlier lawsuit was not the fruit of FL Legal's labor, so there was nothing to which its purported lien could attach. See id. at 1385 (recognizing that an attorney has a right to be compensated for his labor and his lien attaches to the fruits of this labor); Duhamel v. Fluke, 295 So.3d 880, 883 (Fla. 2d DCA 2020) ("The law clearly provides that a charging lien only attaches to the `fruits' flowing from the attorney's efforts."); Correa v. Christensen, 780 So.2d 220, 220 (Fla. 5th DCA 2001) ("It is not enough to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services.").
Further, one of the requirements to perfect a charging lien is timely notice. As this court explained in Greenberg Traurig, P.A. v. Starling, 238 So.3d 862, 865 (Fla. 2d DCA 2018), "[t]o perfect a charging lien, the attorney must `either file a notice of lien or otherwise pursue the lien in the original action' before the case is dismissed." (quoting Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla. 1986)). FL Legal did neither.
There are four requirements to establish a valid charging lien: "(1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorney's fees out of the recovery; (3) either an avoidance of payment or a dispute as to the amount of fees; and (4) timely notice." Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla. 1986).
FL Legal argues it has a charging lien by virtue of the fact it sent a presuit demand letter to State Farm regarding the claim Athans litigated in the earlier case. Among other things, the letter asserted that FL Legal had "a continuous and ongoing lien with respect to any claims asserted in this demand letter." But FL Legal did not file its demand in the original action, thus it did not timely perfect its claimed lien. See Starling, 238 So. 3d at 865.
Citing Brown v. Vermont Mutual Insurance Co., 614 So.2d 574 (Fla. 1st DCA 1993), and Heller, P.A. v. Held, 817 So.2d 1023 (Fla. 4th DCA 2002), FL Legal argues that it is nevertheless entitled to pursue its charging lien against State Farm because it was unaware the earlier case was being litigated by a different law firm until after it was dismissed, and that it was a fraud for State Farm, and presumably Athans, to conduct that litigation without notifying FL Legal that another law firm was pursuing the claim on Athans' behalf. Unlike this case, however, the attorneys in Heller and Brown had a basis to claim a charging lien—they had appeared in the litigation and provided services for which they were owed a fee.
Further, the attorneys in Heller and Brown had given timely notice that they intended to pursue a charging lien. See Heller, 817 So. 2d at 1026; Brown, 614 So. 2d at 581.
Because the trial court ordered State Farm to participate in discovery aimed at furthering FL Legal's pursuit of a charging lien when the record shows no basis to impose a lien in its favor, we grant State Farm's petitions for certiorari and quash the orders compelling discovery. See Walther, 112 So. 3d at 118.
Because it is not necessary to the disposition of this case to do so, we do not reach State Farm's arguments regarding privilege. We note, however, that the trial court compounded its error in allowing the challenged discovery by ordering the discovery of materials claimed to be privileged without first conducting an in-camera inspection. We have also refrained from addressing other irregularities in the proceedings, but nothing should be read into our silence other than it was unnecessary to reach those issues.
Petitions granted; orders quashed.
LaROSE and ATKINSON, JJ., Concur.