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Filing # 168656941 E-Filed 03/14/2023 10:06:15 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
MASSEY CONSTRUCTION GROUP, INC. CIVIL ACTION NO: 20-000315-CA
a/a/o MARGARET PUCKETT and
MAX PUCKETT,
Plaintiff,
v.
AMERICAN INTEGRITY INSURANCE
COMPANY OF FLORIDA,
Defendant.
/
LAW FIRMS’ MEMORANDUM OF LAW
ON QUANTUM MERUIT FEE ANALYSIS
At the recent evidentiary hearing, the Court requested a brief memorandum on quantum
meruit fee analysis. ALEX FINCH, P.A. d/b/a FINCH LAW FIRM and FROMANG & FINCH,
P.A., collectively referred to as ”LAW FIRMS,” assert that quantum meruit fee analysis in this
case involves two (2) issues: (1) quantum of an award; and (2) limitations on any award amount.
LAW FIRMS address these issues below.
I. ENTITLEMENT TO AND QUANTIFICATION OF A QUANTUM MERUIT
AWARD.
In a quantum meruit circumstance relating to attorney’s fees, the trial court must consider
numerous factors to determine the reasonable fee in light of the totality of the circumstances. See
Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366 (Fla. 1995) and The
Mineo Salcedo Law Firm, P.A. at Page 4 (Fla. 4th DCA 2022). The Florida Supreme Court
established the proper criteria for determining an attorney fee quantum meruit award saying:
[A] quantum meruit award must take into account the actual value of the services
to the client. Thus, while the time reasonably devoted to the representation and a
reasonable hourly rate are factors to be considered in determining a proper quantum
meruit award, the court must consider all relevant factors surrounding the
professional relationship to ensure that the award is fair to both the attorneyand
client. See Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.
1
3d 570, 629 N.E.2d 431, 436–437 (1994) (totality of circumstances surrounding
each situation should be considered in determining reasonable value of discharged
contingent-fee attorney’s services in quantum meruit). Application of the factors
set forth in Rule Regulating The Florida Bar 4–1.5(b), may providea good starting
point. However, because the factors relevant to the determination of the
reasonable value of services rendered will vary from case to case, the court is not
limited to consideration of the [Florida Patient’s Compensation Fund v. Rowe,
472 So. 2d 1145 (Fla. 1985),] factors. The court must consider any other factors
surrounding the professional relationship that would assist the court in fashioning
an award that is fair to both the attorney and client. For example, the fee agreement
itself, the reason the attorney was discharged, actions taken by the attorney or client
before or after discharge, and the benefit actually conferred on the client may be
relevant to that determination. The determination as to which factors are relevant
in a given case, the weight to be given each factor and the ultimate determination
as to the amount to be awarded are matters within the sound discretion of the
trial court.
Searcy, 652 So. 2d at 369 (footnotes omitted).
II. QUANTUM MERUIT IS NOT LIMITED BY THE LOADSTAR.
A quantum meruit award is not limited by the lodestar calculation. See Searcy Denney.
The Fourth District Court of Appeal in The Mineo Salcedo Law Firm, P.A. v. Cesard, 333 So. 3d
222 (Fla. 4th DCA 2022), a case referenced at hearing by this Court, relied on Searcy Denny and
determined that a quantum meruit award is not limited to the loadstar calculation. “If the firm is
entitled to a fee, that award must be based upon quantum meruit but without a lodestar.” The Mineo
Salcedo Law Firm, P.A., 333 So. 3d at 231-232. “The measure of damages in a quantum meruit
action is the reasonable value of the labor performed and the market value of the materials
furnished.” Id. The lodestar is a good starting point, but it is neither the upper nor the lower limit
of the value of a quantum meruit award. The Mineo Salcedo Law Firm Court explained the factors
and measurement of a quantum meruit as follows:
Award of Fees under Quantum Meruit
If the firm is entitled to a fee, that award must be based upon quantum meruit but
without a lodestar. See Faulk , 677 So. 2d at 404. To satisfy the elements of quantum
meruit, the [firm] must prove that "[it] provided, and the [former client] assented to
2
and received, a benefit in the form of goods or services under circumstances where,
in the ordinary course of common events, a reasonable person receiving such a
benefit normally would expect to pay for it." F.H. Paschen, S.N. Nielsen & Assocs.
LLC v. B&B Site Dev., Inc ., 311 So. 3d 39, 48 (Fla. 4th DCA 2021) (quoting W.R.
Townsend Contracting, Inc. v. Jensen Civil Constr., Inc ., 728 So. 2d 297, 305 (Fla.
1st DCA 1999) ). "The measure of damages in a quantum meruit action is the
reasonable value of the labor performed and the market value of the materials
furnished." Id . at 50 (citing Dean v. Blank , 267 So. 2d 670, 671 (Fla. 4th DCA
1972) ).
The Mineo Salcedo Law Firm, P.A., 333 So. 3d at 231.
Therefore, in this case, the Court should look at the evidence of the history of the
relationship of LAW FIRMS to Massey Construction Group, Inc. “:MCGI”), the history of the
process of settlement, the parties agreement, and their historical valuation of the LAW FIRMS’
services provided over the course of the relationship, etc. The Court should not limit its valuation
of quantum meruit services to the loadstar calculation.
III. QUANTUM MERUIT FEES ARE NOTT LIMITED BY THE CONTINGENT FEE
AMOUNT IN THE CONTEXT OF AN ENFORCEABLE WRITTEN
ALTERNATE FEE RECOVERY CONTINGENCY FEE CONTRACT.
Should This Court determine that the agreement is valid, then This Court must consider the
reasonable value of the award and the application of any potential fee amount limitation in the
context of a valid alternate recovery contingency fee agreement.1 The only difference between
calculation of quantum meruit fee awards in the absence of an enforceable written contingency
fee agreement as opposed to in the context of an enforceable written contingency agreement is
the award involving an enforceable written contingency fee agreement is capped at the value of
the contingency amount under the contract. See Rosenberg v. Levin, 409 So. 2d 106, 1017 (Fla.
1982); First Baptist Church of Cape Coral, Florida, Inc. v. Compass Construction, Inc., 115 So.
3d 978 (Fla. 2013); and The Mineo Salcedo Law Firm, P.A., , 333 So. 3d at 231-232.
1
The Florida Supreme Court recently approved alternate fee recovery agreements in The Florida Bar v. Strems,
December 22, 2022. MCGI file a notice of Supplemental Authority of this case.
3
A quantum meruit award in connection with a contingent contract generally is limited in
amount to the maximum contingency established by the contract. See Rosenberg, 409 So. 2d at
1017. However, where there is an alternate fee recovery clause in the contingent fee contract,
such as in the case at bar, the quantum meruit amount is not limited by the maximum contingency
fee amount of the contract. See First Baptist Church of Cape Coral, Florida, Inc. v. Compass
Construction, Inc., 115 So. 3d 978 (Fla. 2013). The Florida Supreme Court in First Baptist
Church of Cape Coral ruled that a contingency fee limitation does not apply to an alternate fee
recovery contract type of contract because fees in an amount greater than the contingency were
contemplated and available under the terms of this type of agreement due to an available
multiplier and the client agreed to the compensation terms. See First Baptist Church of Cape
Coral, 115 So. 3d 978.
The fee agreement between LAW FIRMS and MCGI contains alternative fee recovery
clauses as follows:
A. Statutory Attorney Fees. ATTORNEY shall be entitled to all statutory
attorney’s fees awarded pursuant to contract or Florida Statutes Section
627.428 and attorney fees voluntarily paid by the insurer to ATTORNEY for
services rendered to CLIENT in management or prosecution of a claim.
B. Attorney Fee Reimbursement to Client. ATTORNEY shall reimburse
CLIENT all attorney’s fees paid by ATTORNEY from any statutory award
of fees or contractual fees paid by insurer to ATTORNEY in settlement of
any enforcement action. For any claim in which the statutory fee award or
contractual fee award paid by insurer exceeds the aggregate of CLIENT’s
attorney fee obligation and the amount of the contingency fee award for
recovered gross proceeds gross damages, then ATTORNEY will waive the
contingency fee award due under the terms of this contract.
Consequently, LAW FIRMS are entitled to a quantum meruit award in excess of the contingency
limitation. Additionally, where enhancements are available, the attorney’s fee recovery under the contract
is not limited to the contingency value of the contract. Therefore, in this case, the Court should not
4
limit the recovery to the contingency amount.
FROMANG & FINCH P.A.
/s/ Alex Finch
__________________________________
Alex Finch, Esquire
FBN.: 0949220
4767 New Broad Street
Orlando, FL 32814
Tel: (407) 999-9739
Email: alex@fromangfinch.com
2nd Email: afinchlegal@gmail.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served on all
parties/persons entitled to service on March 14, 2023, by Florida E-Portal e-service.
FROMANG & FINCH P.A.
/s/ Alex Finch
__________________________________
Alex Finch, Esquire
FBN.: 0949220
5
Preview
Filing # 168656941 E-Filed 03/14/2023 10:06:15 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA MASSEY CONSTRUCTION GROUP, INC. CIVIL ACTION NO: 20-000315-CA a/a/o MARGARET PUCKETT and MAX PUCKETT, Plaintiff, v. AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA, Defendant. / LAW FIRMS’ MEMORANDUM OF LAW ON QUANTUM MERUIT FEE ANALYSIS At the recent evidentiary hearing, the Court requested a brief memorandum on quantum meruit fee analysis. ALEX FINCH, P.A. d/b/a FINCH LAW FIRM and FROMANG & FINCH, P.A., collectively referred to as ”LAW FIRMS,” assert that quantum meruit fee analysis in this case involves two (2) issues: (1) quantum of an award; and (2) limitations on any award amount. LAW FIRMS address these issues below. I. ENTITLEMENT TO AND QUANTIFICATION OF A QUANTUM MERUIT AWARD. In a quantum meruit circumstance relating to attorney’s fees, the trial court must consider numerous factors to determine the reasonable fee in light of the totality of the circumstances. See Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366 (Fla. 1995) and The Mineo Salcedo Law Firm, P.A. at Page 4 (Fla. 4th DCA 2022). The Florida Supreme Court established the proper criteria for determining an attorney fee quantum meruit award saying: [A] quantum meruit award must take into account the actual value of the services to the client. Thus, while the time reasonably devoted to the representation and a reasonable hourly rate are factors to be considered in determining a proper quantum meruit award, the court must consider all relevant factors surrounding the professional relationship to ensure that the award is fair to both the attorneyand client. See Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St. 1 3d 570, 629 N.E.2d 431, 436–437 (1994) (totality of circumstances surrounding each situation should be considered in determining reasonable value of discharged contingent-fee attorney’s services in quantum meruit). Application of the factors set forth in Rule Regulating The Florida Bar 4–1.5(b), may providea good starting point. However, because the factors relevant to the determination of the reasonable value of services rendered will vary from case to case, the court is not limited to consideration of the [Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985),] factors. The court must consider any other factors surrounding the professional relationship that would assist the court in fashioning an award that is fair to both the attorney and client. For example, the fee agreement itself, the reason the attorney was discharged, actions taken by the attorney or client before or after discharge, and the benefit actually conferred on the client may be relevant to that determination. The determination as to which factors are relevant in a given case, the weight to be given each factor and the ultimate determination as to the amount to be awarded are matters within the sound discretion of the trial court. Searcy, 652 So. 2d at 369 (footnotes omitted). II. QUANTUM MERUIT IS NOT LIMITED BY THE LOADSTAR. A quantum meruit award is not limited by the lodestar calculation. See Searcy Denney. The Fourth District Court of Appeal in The Mineo Salcedo Law Firm, P.A. v. Cesard, 333 So. 3d 222 (Fla. 4th DCA 2022), a case referenced at hearing by this Court, relied on Searcy Denny and determined that a quantum meruit award is not limited to the loadstar calculation. “If the firm is entitled to a fee, that award must be based upon quantum meruit but without a lodestar.” The Mineo Salcedo Law Firm, P.A., 333 So. 3d at 231-232. “The measure of damages in a quantum meruit action is the reasonable value of the labor performed and the market value of the materials furnished.” Id. The lodestar is a good starting point, but it is neither the upper nor the lower limit of the value of a quantum meruit award. The Mineo Salcedo Law Firm Court explained the factors and measurement of a quantum meruit as follows: Award of Fees under Quantum Meruit If the firm is entitled to a fee, that award must be based upon quantum meruit but without a lodestar. See Faulk , 677 So. 2d at 404. To satisfy the elements of quantum meruit, the [firm] must prove that "[it] provided, and the [former client] assented to 2 and received, a benefit in the form of goods or services under circumstances where, in the ordinary course of common events, a reasonable person receiving such a benefit normally would expect to pay for it." F.H. Paschen, S.N. Nielsen & Assocs. LLC v. B&B Site Dev., Inc ., 311 So. 3d 39, 48 (Fla. 4th DCA 2021) (quoting W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc ., 728 So. 2d 297, 305 (Fla. 1st DCA 1999) ). "The measure of damages in a quantum meruit action is the reasonable value of the labor performed and the market value of the materials furnished." Id . at 50 (citing Dean v. Blank , 267 So. 2d 670, 671 (Fla. 4th DCA 1972) ). The Mineo Salcedo Law Firm, P.A., 333 So. 3d at 231. Therefore, in this case, the Court should look at the evidence of the history of the relationship of LAW FIRMS to Massey Construction Group, Inc. “:MCGI”), the history of the process of settlement, the parties agreement, and their historical valuation of the LAW FIRMS’ services provided over the course of the relationship, etc. The Court should not limit its valuation of quantum meruit services to the loadstar calculation. III. QUANTUM MERUIT FEES ARE NOTT LIMITED BY THE CONTINGENT FEE AMOUNT IN THE CONTEXT OF AN ENFORCEABLE WRITTEN ALTERNATE FEE RECOVERY CONTINGENCY FEE CONTRACT. Should This Court determine that the agreement is valid, then This Court must consider the reasonable value of the award and the application of any potential fee amount limitation in the context of a valid alternate recovery contingency fee agreement.1 The only difference between calculation of quantum meruit fee awards in the absence of an enforceable written contingency fee agreement as opposed to in the context of an enforceable written contingency agreement is the award involving an enforceable written contingency fee agreement is capped at the value of the contingency amount under the contract. See Rosenberg v. Levin, 409 So. 2d 106, 1017 (Fla. 1982); First Baptist Church of Cape Coral, Florida, Inc. v. Compass Construction, Inc., 115 So. 3d 978 (Fla. 2013); and The Mineo Salcedo Law Firm, P.A., , 333 So. 3d at 231-232. 1 The Florida Supreme Court recently approved alternate fee recovery agreements in The Florida Bar v. Strems, December 22, 2022. MCGI file a notice of Supplemental Authority of this case. 3 A quantum meruit award in connection with a contingent contract generally is limited in amount to the maximum contingency established by the contract. See Rosenberg, 409 So. 2d at 1017. However, where there is an alternate fee recovery clause in the contingent fee contract, such as in the case at bar, the quantum meruit amount is not limited by the maximum contingency fee amount of the contract. See First Baptist Church of Cape Coral, Florida, Inc. v. Compass Construction, Inc., 115 So. 3d 978 (Fla. 2013). The Florida Supreme Court in First Baptist Church of Cape Coral ruled that a contingency fee limitation does not apply to an alternate fee recovery contract type of contract because fees in an amount greater than the contingency were contemplated and available under the terms of this type of agreement due to an available multiplier and the client agreed to the compensation terms. See First Baptist Church of Cape Coral, 115 So. 3d 978. The fee agreement between LAW FIRMS and MCGI contains alternative fee recovery clauses as follows: A. Statutory Attorney Fees. ATTORNEY shall be entitled to all statutory attorney’s fees awarded pursuant to contract or Florida Statutes Section 627.428 and attorney fees voluntarily paid by the insurer to ATTORNEY for services rendered to CLIENT in management or prosecution of a claim. B. Attorney Fee Reimbursement to Client. ATTORNEY shall reimburse CLIENT all attorney’s fees paid by ATTORNEY from any statutory award of fees or contractual fees paid by insurer to ATTORNEY in settlement of any enforcement action. For any claim in which the statutory fee award or contractual fee award paid by insurer exceeds the aggregate of CLIENT’s attorney fee obligation and the amount of the contingency fee award for recovered gross proceeds gross damages, then ATTORNEY will waive the contingency fee award due under the terms of this contract. Consequently, LAW FIRMS are entitled to a quantum meruit award in excess of the contingency limitation. Additionally, where enhancements are available, the attorney’s fee recovery under the contract is not limited to the contingency value of the contract. Therefore, in this case, the Court should not 4 limit the recovery to the contingency amount. FROMANG & FINCH P.A. /s/ Alex Finch __________________________________ Alex Finch, Esquire FBN.: 0949220 4767 New Broad Street Orlando, FL 32814 Tel: (407) 999-9739 Email: alex@fromangfinch.com 2nd Email: afinchlegal@gmail.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served on all parties/persons entitled to service on March 14, 2023, by Florida E-Portal e-service. FROMANG & FINCH P.A. /s/ Alex Finch __________________________________ Alex Finch, Esquire FBN.: 0949220 5