WAGNER VAUGHN MCLAUGHLIN BRENNAN v. KENNEDY LAW GROUP (2011)

The law firm of Wagner, Vaughn, McLaughlin, and Brennan seeks review of the decision of the Second District Court of Appeal in Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 987 So.2d 741, 744 (Fla. 2d DCA 2008), on the ground that the decision expressly and directly conflicts with the decision of the Third District Court of Appeal in Perez v. George, Hartz, Lundeen, Flagg & Fulmer, 662 So.2d 361 (Fla. 3d DCA 1995), on a question of law.   We have jurisdiction.   See art.   V, § 3(b)(3), Fla. Const.  For the reasons stated below, we approve in part and quash in part the decision of the Second District.

FACTUAL AND PROCEDURAL HISTORY

The underlying case involves the application of section 768.26, Florida Statutes (2005), the attorney fees provision of the Florida Wrongful Death Act (the Act), in a wrongful death action that settled before suit was filed and in which the survivors were represented by separate counsel.   The case stems from the deaths of Robert and Thelma Elmore as the result of an automobile accident that occurred in June 2005.   The Elmores were survived by three adult sons, Gary, Larry, and Robert.   In August 2005, Gary was appointed the sole personal representative of the Elmores' estates, pursuant to a provision in the Elmores' wills.   Larry and Robert both signed forms approving Gary's appointment as the personal representative.

Gary retained the Kennedy Law Group (KLG) to represent him in his capacity as personal representative.   KLG negotiated a settlement for the full proceeds of the accident tortfeasor's bodily injury insurance policy and distributed the net proceeds to Gary, who in turn divided the proceeds equally among the three brothers on August 19, 2005.

On August 17, 2005, an attorney from the law firm of Wagner, Vaughn, McLaughlin & Brennan, P.A. (the Wagner firm) wrote KLG to inform them that the Wagner firm represented Larry Elmore.   The Wagner firm also proposed a fee-sharing arrangement between the law firms for a wrongful death action.   The Wagner firm suggested that the two firms participate equally in handling the action and split the attorney's fee for whatever recovery was obtained for Gary and Larry Elmore.   KLG did not respond to the letter.

On the day that Larry received his share of the proceeds from the bodily injury settlement, the Wagner firm wrote to the attorney who represented the Elmores' estates in the probate action.   The letter stated that Larry did “not approve of the distribution apportionment,” that Larry should have been given an opportunity to object to the apportionment of the funds in the probate court, and that the probate court was required to approve the disbursement of the funds from the settlement.   The Wagner firm also copied the letter to KLG and informed KLG that it did not have the authority to settle on behalf of Larry.   The Wagner firm requested that KLG immediately stop payment on the settlement checks and take no further action regarding the claim.

The Wagner firm then filed a petition in the probate court seeking the removal of Gary as the personal representative and the return of the settlement proceeds to the trust account until Larry's objections could be heard.   The probate court denied the petition as procedurally deficient, and the Wagner firm made no further objections to the distribution of the settlement proceeds.   Larry cashed his settlement check without taking any further action in the courts.

Shortly thereafter, KLG made a demand upon the Elmores' automobile insurer for $2 million in uninsured motorist insurance proceeds.   The insurer requested pre-suit mediation.   On the morning of mediation, Robert Elmore retained the same Wagner firm attorney representing Larry to also represent him in the proceedings.   The Wagner firm and KLG accompanied the three Elmore brothers to the mediation, which produced a settlement of $1.23 million.

The Wagner firm memorialized Larry and Robert's position in a letter to KLG at the end of the day of the mediation.   The letter asserted that the case “could have and should have settled” higher than it did.   The letter also stated that Larry and Robert's claims were worth more than Gary's, but the two brothers were willing to approve the settlement in exchange for a one-third distribution of the proceeds to each brother.   The probate court approved the settlement, and the parties proceeded to an evidentiary hearing on attorney's fees.   It was at this hearing that the probate court determined that the Wagner firm was not entitled to a portion of the attorney's fee award because Larry and Robert did not have any competing claims with Gary. The probate court issued an order awarding KLG the entire contingency attorney fee amount from the $1.23 million in settlement proceeds.

The Wagner firm appealed the probate court order to the Second District Court, arguing that the lower court erred in awarding KLG the entire fee for three reasons.   First, the Wagner firm asserted that the Act does not provide for fees incurred if the case settles before suit is filed.   Second, the Wagner firm argued that there was a conflict of interest between Gary and his brothers that precluded KLG from collecting attorney's fees for work done for Larry and Robert.   Third, the Wagner firm contended that it did not have to show that Larry and Robert had a competing claim in order to be entitled to fees under the Act. The Second District concluded that none of these arguments merited reversal.   See Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 987 So.2d 741, 744 (Fla. 2d DCA 2008).

The Second District held that even though the wrongful death action settled prior to

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