That money is mine!

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 17

CASES FROM THE WEEK OF MAY 2, 2025

COURT HOLDS THAT DEFENDANT AND ITS COUNSEL MAY BE HELD JOINTLY AND SEVERALLY LIABLE FOR ATTORNEY’S FEES STEMMING FROM A CHARGING LIEN, AFTER BOTH BREACHED THEIR AFFIRMATIVE DUTY TO PROTECT THE LIENOR’S INTEREST IN SETTLEMENT PROCEEDS

Kaster, Lynch, Farrar & Ball, LLP v. Clyde & Co., 50 Fla. L. Weekly D906 (Fla. 3rd DCA Apr. 23, 2025):

In this wrongful death action filed against Cooper Tire and others, the plaintiff retained the Kaster law firm as well as another attorney to represent her in her product liability action on a contingent fee basis. The Kaster firm served as lead counsel.

Before settlement was reached, the plaintiff discharged the Kaster firm. The case subsequently settled for $250,000. On the same day, the Kaster firm filed a notice of charging lien for its attorneys’ fees and costs. It was undisputed that Cooper Tire and its counsel, Clyde Law, received notice of Kaster’s charging lien.

To protect its charging lien and ensure the proper disbursement of the settlement funds, the Kaster firm asked Clyde Law to protect its lien as it drafted the settlement documents and issued the settlement check. Clyde Law agreed and responded in writing that it would meet its obligations to ensure the check was drafted in the following format:

“Once all of the terms and conditions of the settlement agreement have been met and fully complied with, we will issue our settlement draft, which shall be made payable to ‘MERCINA SOUFFRANT as personal representative of the estate of HEROLD SOUFFRANT, Asconape Law Group, Rubenstein Law PA and Kaster, Lynch, Farrar & Ball LLP.’”

Attorney Asconape subsequently contacted Clyde Law and demanded that it draft the settlement check and make it payable to the trust account of the Law Office of Santiago Asconape, FBO Mercia Souffrant as PR of the estate of Herold Souffrant.

Inexplicably and without notice to Kaster, Clyde Law agreed and drafted the check as Asconape requested without requiring Kaster’s endorsement.

The check was then made payable to the Law Office of Asconape F/B/O Mercia Souffrant PR of the estate of Herold Souffrant and Kaster, Lynch, Farrar & Ball LLP.

Asconape deposited the check without paying Kaster and refused to tender payment. Kaster Law then moved to enforce its charging lien.

Unable to collect, the Kaster firm filed an action for breach of contract and equitable relief against Clyde Law, Cooper Tire, and Asconape for failing to protect its charging lien. Kaster alleged that Clyde Law had actual notice of its charging lien, held proceeds of the settlement, and had, or explicitly undertook in writing, an affirmative duty to protect Kaster’s lien interest. Kaster alleged that Clyde Law explicitly agreed it would draft the check in such a manner requiring endorsements from both Asconape and Kaster, and it breached its duty by improperly and/or negligently drafting the check which allowed Asconape to deposit the proceeds without regard to the Kaster charging lien.

In response, Cooper Tire and Clyde Law argued that their actions showed full compliance with any legal duty they had and asserted that Asconape’s actions were unforeseeable and constituted intervening superseding acts for which they had no responsibility. The trial court agreed. On rehearing, the Kaster firm argued that Clyde Law impaired the lien by negligently drafting an ambiguous settlement check and could not be relieved from responsibility simply because the Kaster firm’s name appeared somewhere on the check.

The appellate court agreed with Kaster. To perfect a charging lien, the lienor attorney need only demonstrate that he or she provided the parties to the litigation with timely notice of the interest. Once the lienor provides timely notice of the interest to the parties in the litigation, the charging lien is perfected. Such a perfected lien is chargeable against any person who at the time of notice of intent to claim a lien is given, holds monies or property which become the proceeds of a judgment entered in the future.

After a charging lien is perfected, the paying party has an affirmative duty to notify the lienor law firm of the settlement and to protect the law firm’s lien interest in the settlement proceeds.

This duty can be fulfilled by: (1) notifying the lienor of the settlement; (2) including the lienor on the settlement check; (3) obtaining the lienor’s written waiver of its lien; or (4) obtaining a hold harmless agreement from the attorney receiving the funds.

However, if the duty is breached, the paying party along with the former client and subsequent counsel may be held jointly and severally liable for the lienor law firm’s fee.

The trial court erroneously found that Cooper Tire and Clyde Law had fulfilled their affirmative duty to protect the lien by merely placing Kaster’s name somewhere on the check. However, there is a requirement that the paying party draft the settlement check in such a manner to protect the lienor, and that the paying party has an affirmative duty to notify the lienor law firm of the settlement and to protect the firm’s interest in the settlement proceeds.

By issuing the settlement check without requiring Kaster’s endorsement, Clyde Law failed to protect the charging lien and therefore was in breach of Cooper Tire and Clyde Law’s affirmative duty, rendering them jointly and severally liable for Kaster’s attorneys’ fees.

The appellate court wrote that courts will protect the attorney against settlements which are designed to defraud or otherwise defeat the payment of fees, and any settlement made by the client after the attorney’s lien has attached will not be permitted to interfere with the lien.

Accordingly, if a party holding the proceeds of the recovery or settlement pays money to the client with notice or knowledge of a charging lien without protecting the attorney’s interests, that party may be held jointly and severally liable with the attorney’s client for the amount of the fees and costs.

YET ANOTHER CASE DENYING A MOTION TO AMEND TO ADD CLAIMS FOR PUNITIVE DAMAGES

Coll v. 1USA Group, LLC, 50 Fla. L. Weekly D910 (Fla. 3rd DCA Apr. 23, 2025):

Without any facts, the court advised that while it did not wish to diminish the claims made or the injuries allegedly suffered, it believed that the plaintiff failed to make a reasonable showing that the defendant’s actions were of a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects.

The court affirmed yet another denial of the motion to amend for punitive damages.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY ALLOWING AN UNFETTERED SEARCH OF THE PLAINTIFF’S CELL PHONE AND EXTRACTION OF ALL DATA WITHOUT EVIDENCE TO SUGGEST PLAINTIFF DESTROYED EVIDENCE OR THWARTED DISCOVERY, AND WITHOUT FINDING THAT RELEVANT INFORMATION WAS LIKELY TO BE FOUND ON THE PHONE—DEFENDANT’S GENERAL ASSERTIONS ABOUT PEOPLE’S TENDENCY TO CAPTURE AND SHARE EVERY ASPECT OF THEIR LIVES ON THEIR PHONE DID NOT JUSTIFY THE INTRUSION INTO THE PLAINTIFF’S PRIVACY

Halikoytakis v. Future Motion, Inc., 50 Fla. L. Weekly D919 (Fla. 2nd DCA Apr. 23, 2025):

The plaintiff filed a petition for writ of certiorari challenging the trial court’s order denying his objections to the defendant’s notice of mobile phone inspection and request for a protective order. The trial court’s order permitted the defendant to conduct an inspection of the entire contents of the plaintiff’s mobile phone pursuant to a protocol set forth in the motion for a period of six months.

The plaintiff was riding a Onewheel, a self-balancing battery-powered transportation device designed, manufactured, and sold by the defendant. The plaintiff was suddenly ejected from the device and sued the defendant for his injuries.

The plaintiff had testified that he had neither emailed nor texted anyone other than his counsel about the incident or his injuries and testified that he had not posted anything on social media about the incident, nor had he joined any Onewheel social media groups. While the plaintiff had downloaded the Onewheel app on his mobile phone and had testified that he may have recorded a ride or two, he was certain he had not recorded the one that was the subject of the lawsuit. The plaintiff also testified that his mobile phone was in his pocket at the time of the accident.

The defendant filed a notice of mobile phone inspection pursuant to Rule 1.350 and demanded that the plaintiff produce, to a data acquisition company, his mobile phone for inspection of the data over a six-month period. The notice also required the plaintiff to provide all his login credentials so that forensic images of electronically stored information could be created. The protocol stated that the data acquisition company would provide the information extracted to the plaintiff’s counsel for review and possible redaction or withholding based on privilege, work product, or confidentiality concerns.

The defendant asserted that inspection of the phone would lead to the discovery of information related to the purchase and pre-incident operation of the Onewheel as well as the subject incident and post-incident communications about the cause of the accident. While the defendant acknowledged that the plaintiff had testified that he had not disclosed any information about the incident in text messages, emails, or social media, the defendant asserted that the plaintiff admitted he had used the phone on one or two occasions contemporaneous with his riding.

The plaintiff argued defendant was engaging in a fishing expedition, and there was no evidence suggesting he had destroyed evidence or thwarted discovery. He asserted that subpoenaing his mobile phone carrier would be a less intrusive way to obtain the sought-after information.

The trial court found that in light of the limited information that plaintiff had produced, the court was going to allow the inspection.

The court issued the writ. It found there was no evidence to suggest that the plaintiff had thwarted discovery, and while it was undisputed that the plaintiff failed to retain the original recording of the incident, no evidence suggested that he had intentionally deleted it.

The plaintiff also disputed that his phone contained relevant information and contended that his deposition testimony established that the relevant information did not exist on his phone. The trial court did not even find that the relevant information was likely to be found on the phone. It simply determined that the defendant should be permitted to inspect the phone to see what information may be available on it.

The court found there was not enough provided by the defendant to justify such a large invasion into the plaintiff’s privacy rights, and even with the protections put into place by the order, it granted the petition.

SCANT NEGATIVE TESTIMONY OF A WITNESS STATING THAT HE DID NOT SEE A PHANTOM VEHICLE COULD NOT OVERCOME THE UNEQUIVOCAL POSITIVE STATEMENT OF A THIRD DRIVER THAT SHE WAS STRUCK BY A PHANTOM VEHICLE

Allstate Fire and Casualty Insurance Co. v. Schroeder, 50 Fla. L. Weekly D935 (Fla. 1st DCA Apr. 23, 2025):

Allstate appealed the final summary judgment entered for two of its co-defendants stemming from a multi-vehicle collision. The plaintiffs alleged that a series of rear-end collisions occurred and that the first vehicle was rear-ended by a second vehicle, who was then rear-ended by a third vehicle.

In support of the third driver’s motion for summary judgment, the driver filed an affidavit stating that she was also rear-ended by a fourth phantom vehicle. The third driver stated there was nothing she could do to avoid crashing into the vehicle in front of her, which then crashed into the plaintiffs.

Allstate, that insured the second driver, opposed summary judgment and filed a response containing excerpts of the plaintiffs’ and other co-defendant depositions where witnesses in general terms denied seeing a phantom vehicle, and had no recollection of a vehicle passing them immediately after the crash, only mentioning crowded conditions on the road at the time.

The trial court granted summary judgment for the third driver based on the affidavit.

Under Florida law, there is a rebuttable presumption of negligence that attaches to the rear driver in a rear-end collision. Because the third driver’s affidavit refuted her negligence and placed all the blame for the crash on the phantom driver, it was then up to the other co-defendants or the plaintiffs to raise material facts to avoid summary judgment.

Testimony merely stating that witnesses did not see a phantom vehicle could not overcome the unequivocal positive statement of the third driver that there was a phantom vehicle. The court noted that if any of the witnesses had said that they had looked where they should have been looking and saw nothing, that could have defeated summary judgment, but the general statements submitted in opposition to the summary judgment simply did not establish that they would have seen a phantom vehicle had it been present.

The court affirmed the summary judgment.