IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
MINOUCHE NOEL,
etc., et al,
Plaintiffs
v.
Case No. 90-31966 (13)
NORTH BROWARD
HOSPITAL DISTRICT,
etc., et al
Defendants
____________________/
MOTION FOR LEAVE OF COURT TO APPEAR AS AMICUS CURIAE
COMES NOW Alex Sink, Chief Financial Officer of the State of Florida, by
and through undersigned counsel, and moves this Court for leave to appear
herein as amicus curiae, and files the accompanying memorandum of law with
the Court. In support of this motion it is shown:
1)
Every attorney in this state may be called upon by the courts
thereof to serve as an amicus curiae [Section 454.11, Fla. Stat.], and an amicus
curiae may appear before a trial court as well as before an appellate court. Revell
v. Dishong, 175 So. 905 (Fla. 1937); State ex rel Revell v. City of Wachula, 189
So. 247 (Fla. 1939).
2)
Pursuant to a Claims Bill enacted by the 2007 Florida Legislature,
codified as Ch. 2007-261, Laws of Florida, (an enrolled copy thereof is attached
hereto), the Chief Financial Officer has been legislatively directed to deliver
certain specified sums of money to Minouche Noel, and to her parents Jean and
Flora Noel. Further, the Florida Legislature expressly specified in said Claims Bill
that attorneys’ fees and costs and lobbyists’ fees and costs were to be capped at
$1,074,667 and $85,000 respectively.
3)
However, the attorneys for the Noels have now filed motions to re-
open this case and file a charging lien that would result in counsel being paid
fees and costs substantially in excess of those specified by the Claims Bill.
Additionally, counsel seeks compensation for lobbying services it purportedly
performed, which services were not addressed in the Claims Bill; the Claims Bill
award of lobbyist fees was directed to another lobbyist, not to the attorneys
acting as lobbyists. Moreover, it appears that counsel is seeking this additional
compensation based on an “agreement” they purportedly entered into with the
Noels on July 9, 2007, a date that occurred after the passage of the Claims Bill.
4)
The Chief Financial Officer believes that said motions are not well-
taken, and are a transparent attempt to evade the clear intent of the Florida
Legislature to limit the award of attorneys’ fees and costs and lobbyists’ fees and
costs to that figure specified in the Claims Bill for those services and expenses.
The Florida Legislature apparently agrees. See the attached letter from Senate
President Ken Pruitt and House Speaker Marco Rubio.
5)
The Chief Financial Officer has a legal obligation to obey the
commands of the Florida Legislature, which in this instance forbade the payment
of attorneys’ fees and costs and lobbyists’ fees and costs above the specified
amounts. As demonstrated in the following memorandum of law, the Chief
Financial Officer believes that she and her attorneys may be of substantial
assistance to this Court relative to the proper disposition of the pending motions.
2
MEMORANDUM OF LAW
A.
The Court lacks jurisdiction to re-open this case.
On March 25, 1999, a jury awarded damages to the Noels. That
award was thereafter reduced to a Final Judgment that contained no relevant
reservation of jurisdiction, and the award specified therein, as authorized and
delimited by section 768.28(5), Fla. Stat., was paid in 2000. Upon the expiration
of the period within which to file a motion to alter, modify, or vacate the final
judgment, which period has long since passed, this Court was permanently
divested of jurisdiction over this cause. Pruitt v. Brock, 437 So.2d 768 (Fla. 1st
DCA 1983); General Capital Corp. v. Tel Service Co., 212 So.2d 369 (Fla. 2nd
DCA 1968); Patin v. Popino, 459 So.2d 435 (Fla. 3rd DCA 1984); Port Everglades
Authority v. International Longshoreman’s Ass’n, Local 1922-1, 652 So.2d 1169
(Fla. 4th DCA 1995) Seddon v. Harpster, 438 So.2d 165 (Fla. 5th DCA 1983).
Thus, this Court is now without jurisdiction to entertain any substantive motion
whatsoever, including the pending motions.
B.
The claims bill is a matter of legislative grace, the terms and conditions of
which cannot be altered by private contract.
In 1980 the Florida Legislature enacted Ch. 80-448, Laws of Florida, a
Claims Bill for the relief of Cynthia Leigh Gamble, a minor child who had suffered
disfiguring injuries while in the state’s custody. (A copy of that Claims Bill is
attached.) That Claims Bill specifically limited her attorneys’ fee to $10,000. Her
attorney proceeded to court, arguing that the Claims Bill’s limitation on his fee
unconstitutionally impaired the obligation of his contingency fee contract with his
3
client, which called for a 33 and 1/3% share of the recovery. The Second District
Court of Appeal agreed and held the limitation unconstitutional. Gamble v. Wells,
436 So.2d 173 (Fla. 2nd DCA 1983)
On review, the Florida Supreme Court unanimously reversed, stating, in
pertinent part:
“Parties cannot enter into a contract to bind the state
in the exercise of its sovereign power. The legislature
had the power to place the attorney’s fee limitation in
chapter 80-448. Wells, by the terms of his contingent
fee contract with Gamble, could not deprive the
legislature of this power.”
Gamble v. Wells, 450 So.2d 850, 853 (Fla. 1984)
Here, by virtue of a purported, written “agreement”, purportedly entered
into on July 9, 2007, well after the passage of the instant claims bill, the attorneys
seek to alter the terms and conditions of the claims bill as to their fees and costs.
Under the teaching of Gamble v. Wells, supra, that is impermissible, even had
the contract arisen before the claims bill passed; it is even more patently
impermissible when the purported contract arose only after the claims bill had
passed. Further, from the available case law, a charging lien will attach only to a
judgment or to a settlement; no case law shows its applicability to a Claims Bill.
See, e.g., Litman v. Fine, Jacobsen, Schwartz, Nash, Block & England , 517
So.2d 88 (Fla. 3rd DCA 1987); Nichols v. Kroelinger, 46 So.2d 722 (Fla. 1950).
The Florida Supreme Court’s holding in Gamble v. Wells is materially on all fours
with the instant case, and controls. The private contract cannot trump the
sovereign power of the state.
4
C.
The charging lien motion is fatally defective.
To establish a valid charging lien, four conditions must be met:
1)
an express or implied contract between the attorney and the
2)
an express or implied understanding for the payment of the
client;
attorneys fees out of the proceeds of the client’s recovery;
3)
either an avoidance of payment by the client, or a dispute
between the client and the attorney as to the amount of the fee, and
4)
timely notice of the charging lien claim.
Law Offices of David H. Zoberg, P.A. v. Rosen, 684 So.2d 828, 829 (Fla. 3rd DCA
1996); Daniel Moines, P.A. v. Jeffrey Smith and First Impression Industries, Inc.,
486 So.2d 559 (Fla. 1986).
An examination of the instant charging lien motion shows no allegation
that the there was an express or implied understanding between the attorneys
and the clients that attorneys fees and costs would be paid out of the proceeds of
the claims bill rather than out of the court litigation, and more importantly, no
allegation of any avoidance of payment by the client or any dispute as to the
amount of the fees. The absence of either allegation renders the motion patently
defective. Moreover, the 2007 written “agreement” states that the client agrees to
pay the fees and costs sought by the motion. Thus, the purported “agreement”
apparently relied on by the attorneys to establish a charging lien negatives the
third element necessary to establish such a lien. The motion is thus fatally
defective.
5
Additionally, the purported 1990 contract which, according to paragraph
one of the “Attorney’s Charging Lien”, serves as the basis for the charging lien
motion, does not appear to be attached to the motion. Pursuant to Fla. R. Civ. P.
1.130, it is necessary to attach to the operative pleading any written contract on
which the pleading relies. The penalty for failure to do so is dismissal. Samuels v.
King Motor Co. of Ft. Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001); Eigen v.
Federal Deposit Ins. Co., 492 So.2d 826 (Fla. 2nd DCA 1986); Safeco Ins. Co. of
America v. Ware, 401 So.2d 1129 (Fla. 4th DCA 1981).
In summation, the Chief Financial Officer respectfully suggests that the
Court is presently without jurisdiction to entertain the motions in question, cannot
grant the relief sought by the motion inasmuch as that relief is in direct
contravention of the express will of the Florida Legislature, and that the motions
themselves are fatally defective. Therefore, the motions should be denied.
A Declaratory Judgment/Interpleader action addressing these issues is
being filed in the Second Judicial Circuit as of even date herewith. A true copy of
the same will shortly be delivered to this court as a courtesy.
Respectfully submitted,
__________________________
Michael H. Davidson
200 E. Gaines Street
612 Larson Building
Tallahassee, Fl. 32399
(850) 413-4178
Fla. Bar No. 191637
Counsel for the Department
6
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was sent by regular
U.S. mail to Bruce S. Rogow and Cynthia E. Gunter, Bruce S. Rogow, P.A.,
Broward Financial Center, Suite 1930 500 East Broward Blvd. Ft. Lauderdale, Fl.
33394 and Sheldon J. Schlesinger and Scott P. Schlesinger, 1212 Southeast
Third Avenue Ft. Lauderdale, Fl. 33316, and to Minouche Noel and Jean and
Flora Noel, 506 Balcon Terrace, S.E., Palm Bay, Fl. 32909 this _______ day of
July, 2007.
_______________________________
7