       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                        RICHARD A. WRIGHT,
                             Appellant,

                                     v.

                     GUY YUDIN & FOSTER, LLP,
                             Appellee.

                             No. 4D14-103

                           [October 7, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence Mirman, Judge; L.T. Case No. 432011CA1207.

  Amy D. Shield and Roger Levine of Amy D. Shield, P.A., Boca Raton, for
appellant.

    Joanne Foster and John S. Yudin of Guy Yudin & Foster, LLP, Stuart,
for appellee.

HAIMES, DAVID A., Associate Judge.

    Appellant Richard A. Wright appeals the Final Judgment awarding the
law firm of Guy Yudin & Foster, LLP (“GYF” or “the law firm”) attorneys’
fees in the amount of $109,960.76 plus prejudgment interest in the
amount of $28,877.34. Because we find that the agreement between the
parties did not involve a contingency fee arrangement, and because the
trial court properly calculated prejudgment interest, we affirm.

                             I. Background

   Over the course of many years, Appellant and the law firm had an
ongoing relationship where the law firm would provide legal services to
Appellant on an as needed basis. The relationship was such that Appellant
frequently had multiple actions pending with the law firm.

  Of significance to the present case are two separate matters where
Appellant hired the law firm to represent him. The first matter began in
2005 when the law firm represented Appellant in a complex federal
maritime suit that arose after a boat detached from Appellant’s marina
during a hurricane and destroyed another marina’s dock. The federal
maritime case was referred to by the parties as the URGOS matter. The
case reached a settlement agreement in August 2006, and Appellant
incurred legal fees to the law firm during the URGOS matter totaling
$47,837.34.

   The second matter began in 2006, when Appellant hired the law firm to
represent him in matters involving a piece of real property known as the
Tierra Del Lago property (“the TDL Property”). Among these matters was
a lawsuit against Appellant’s sister, Gay Vela (“the Sister”), where the
Sister sought to foreclose on a mortgage and force a sale of the TDL
Property.

    As of March 2007, Appellant had not paid the law firm for the legal fees
incurred in the URGOS matter. The law firm also had performed a
substantial amount of legal work with respect to the TDL Property. On
March 1, 2007, in anticipation of the sale of the TDL Property, the law firm
requested Appellant to sign a letter to ensure that their legal fees would be
paid at the closing of the TDL Property. The text of the March 1, 2007
letter reads as follows:

      The purpose of this letter is to memorialize our agreement
      regarding attorneys’ fees owed by you to [the law firm] for the
      current matter regarding Tierra del Lago and for our
      representation of URGOS in the matter of Stuart Cay Marina
      and Allied Marine Group v. M/V Special Delivery, URGOS, et.
      al., U.S.D.C. So. Dist. of Florida, 04-14360.         Per our
      discussion you agreed these fees would be paid at the closing
      of the Tierra del Lago property.

      The amount owed to [the law firm] for the URGOS matter
      totals $47,837.34 and fees in the matter of Tierra del Lago to
      date total $10,703.14.

      Please sign this letter and return a copy to us to confirm you
      consent to this agreement. I will provide a copy to . . . the
      committee counsel for Tierra del Lago, so that arrangements
      for payment at closing can be made.

Appellant agreed to the letter and signed it.

   In October 2007, Appellant entered into a contract for the sale of the
TDL Property for $8,500,000.      In February 2008, after becoming
dissatisfied with GYF’s services, Appellant terminated the law firm’s

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representation and requested the law firm to transfer his file to different
counsel. In March 2008, the sale of the TDL Property fell through due to
extensive wetlands issues and lack of governmental approvals required to
develop the site.

   In September 2010, the Sister sold her interest in the TDL Property for
approximately $1,100,000. A warranty deed was issued to the purchaser.
Subsequently, the law firm became aware of the closing and
unsuccessfully attempted to collect from Appellant the amounts outlined
in the March 1, 2007 letter. The law firm then filed the present action
seeking to recover its attorneys’ fees.

Following a non-jury trial, the trial court entered a final judgment in favor
of the law firm in the total amount of $138,838.10, consisting of
$109,960.76 of attorneys’ fees plus $28,877.34 of prejudgment interest.
The $109,960.76 consisted of the $58,540.48 of attorneys’ fees in the
March 1, 2007 letter and $51,420.28 for the work the law firm performed
from April 2007 to February 2008. Appellant appealed.

                               II. Discussion

    Appellant raises two issues on appeal. First, Appellant asserts that the
trial court erred in its interpretation of the March 1, 2007 letter and that
the letter constituted a contingency fee arrangement. Appellant argues
that because the sale contingency set forth in the March 1, 2007 letter was
not met, no attorneys’ fees were ever due. Second, Appellant asserts that
the trial court erred in calculating the prejudgment interest award. We
will address each issue in turn.

                             A. Attorneys’ Fees

    A trial court’s decision awarding unpaid attorneys’ fees is reviewed for
abuse of discretion. Glantz & Glantz, P.A. v. Chinchilla, 17 So. 3d 711, 713
(Fla. 4th DCA 2009); Universal Beverages Holdings, Inc. v. Merkin, 902 So.
2d 288, 290 (Fla. 3d DCA 2005). A trial court’s interpretation of a contract
is reviewed de novo. Kolter Signature Homes, Inc. v. Shenton, 46 So. 3d
1211, 1215 (Fla. 4th DCA 2010).

    Appellant argues that the trial court erred in its interpretation of the
March 1, 2007 letter agreement by giving it a new interpretation than what
originally was understood by the parties. Appellant asserts that, because
the only terms discussed in the letter were the amounts owed and a
triggering event for payment, the agreement constituted a contingency fee
arrangement. Appellant contends that the contingency was for the fees to

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be paid from the proceeds of the sale of the entire TDL Property. Appellant
further argues that the September 2010 closing of the Sister’s interest in
the property was not the type of closing contemplated in the March 1, 2007
letter, because Appellant was not the seller and still retained his interest
in the TDL Property. Appellant concludes that because the contingency
was not met, no attorneys’ fees were ever due. Appellant relies principally
on Brickell Place Condo Ass’n v. Joseph H. Ganguzza & Associates, P.A.,
31 So. 3d 287 (Fla. 3d DCA 2010), in support of his position.

   In Brickell Place, the court provided a succinct definition of a
contingency fee agreement and when it applies. “A contingency fee
agreement is one in which the fee is made contingent on the outcome of
the matter upon which the services are rendered.” Id. at 290 (citing R.
Regulating Fla. Bar 4-1.5(f)(1), and BLACK’S LAW DICTIONARY 320 (6th ed.
1990) (defining a contingency contract as “[a] contract, part of performance
of which at least is dependent on the happening of a contingency.
Sometimes used to refer to fee arrangement with attorney who agrees to
accept [a] fee on the contingency of a successful outcome”)).

   In that case, a law firm had represented two condominium associations
in collections matters for twenty years. Id. at 288-89. After the
condominium associations terminated their relationship with the law firm
and retained new counsel, the prior law firm filed a retaining lien and
refused to turn over its files until they were paid for legal services. Id. at
289. The condominium associations filed suit to obtain their files. Id. To
resolve the dispute, the court determined the nature of the fee
arrangement between the parties as follows:

      The arrangement between the law firm and the Associations
      for the collection of delinquent unit owner fees falls directly
      within these [contingency fee] definitions. The law firm did
      not bill for nor get paid for its services in collecting these
      delinquent fees unless and until it was successful in collecting
      the amount due from the unit owner.

Id. at 290. The court explained that a proper contingency agreement
occurs when a law firm does not bill or expect payment until and unless
the contingency is achieved. Id. The law firm did not bill or receive
payment until it was successful in collecting delinquent fees from
condominium unit owners. Id. The agreement at the outset between the
parties was such that no payment was due to the firm unless and until
the firm successfully collected the delinquent fees from the unit owners.
Id. Therefore, the court found that the arrangement between the parties
was a contingency fee arrangement.

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    Turning to the present case, the March 1, 2007 letter, unlike the
arrangement in Brickell Place, does not meet the definition of a contingency
fee agreement. First, the March 1, 2007 letter was drafted solely to
memorialize the amounts that were already due and owed to the law firm
in order to assure Appellant agreed to those amounts before further legal
services continued. At the time Appellant incurred the fees memorialized
in the letter, there was no consideration by the parties that payment of the
fees depended on some successful action by the law firm.                 The
longstanding relationship between Appellant and the law firm further
evidences the payment procedures used over the course of their
representations — the bills were incurred as services were rendered, and
Appellant would pay for those services intermittently as the bills increased.

    Second, the letter also was executed to provide a timeframe for payment
of the legal services already due. Whether the TDL Property ultimately was
sold had no bearing on whether Appellant was indebted to the law firm for
the services already rendered, a majority of which arose from previous
litigation in the URGOS matter. No plausible interpretation of the terms
of the letter suggests that the law firm did not intend to be paid for its past
services unless the sale of the TDL Property occurred. Rather, the letter
acted as an admission by Appellant for the debt already owed to the law
firm regardless of what event triggered the time for payment.

    A contingency fee arrangement occurs when a law firm does not bill or
expect payment until and unless the contingency is achieved.
Contingency fee arrangements are typically contingent upon a successful
outcome. See R. Regulating Fla. Bar 4-1.5(f)(1) (“A fee may be contingent
on the outcome of the matter for which the service is rendered.”). Here,
the law firm already had performed legal services for which it clearly
expected to receive payment, regardless of the outcome of the case or any
other contingency. Therefore, the trial court properly concluded that the
March 1, 2007 letter was not a contingency fee agreement and was instead
an admission by Appellant for legal fees already owed. Accordingly, we
affirm the award of attorneys’ fees.

                          B. Prejudgment Interest

    “The trial court’s decision concerning entitlement to prejudgment
interest is reviewed de novo.” Reimbursement Recovery, Inc. v. Indian River
Mem’l Hosp., Inc., 22 So. 3d 679, 682 (Fla. 4th DCA 2009). It is well settled
that prejudgment interest is calculated from the date that payment was
due. Bevins v. Antuna, 68 So. 3d 420, 420 (Fla. 4th DCA 2011) (“[T]he
Antunas should recover from the Bevins the accrued prejudgment interest

                                      5
on their escrow deposit from the date the funds should have been returned
to them.”); Capitol Envtl. Servs. Inc. v. Earth Tech, Inc., 25 So. 3d 593, 597
(Fla. 1st DCA 2009) (“Once the jury sets the amount of damages to be
awarded, the damages are retroactively considered liquidated damages,
and the plaintiff is entitled to prejudgment interest back to the date that
the damages were due.”); Reimbursement Recovery, 22 So. 3d at 682
(“Where a disputed claim becomes liquidated by the trier of fact as to the
amount recoverable, interest should be awarded from the date the
payment was due.”).

    “The lower court’s ultimate factual determinations during a non-jury
trial may not be disturbed on appeal unless shown to be unsupported by
competent and substantial evidence or to constitute an abuse of
discretion.” Zupnik Haverland, L.L.C. v. Current Builders of Fla., Inc., 7 So.
3d 1132, 1134 (Fla. 4th DCA 2009) (citing Berlin v. Pecora, 968 So. 2d 47,
50 (Fla. 4th DCA 2007), rev. denied, 982 So. 2d 684 (Fla. 2008)); see also
Merkin, 902 So. 2d at 290 (“When a cause is tried without a jury, the trial
judge’s findings of fact are clothed with a presumption of correctness on
appeal, and these findings will not be disturbed unless the appellant can
demonstrate that they are clearly erroneous.”).

   Turning to the present case, the trial court awarded $28,877.34 of
prejudgment interest. Appellant contends that the dates the trial court
utilized for when interest began accruing were chosen in error. We
disagree.

    The trial court found that the prejudgment interest on the $51,420.28
(the fees from the TDL Property litigation incurred after the March 1, 2007
letter) began accruing in March 2008, the month after Appellant
terminated GYF’s representation and transferred the case to new counsel.
The trial court also found that the prejudgment interest on the $58,540.48
of attorneys’ fees from the March 1, 2007 letter began to accrue in
September 2010 when the Sister closed on the sale of her interest in the
TDL Property. Appellant asserts that the Sister’s sale was not the sale
contemplated in the March 1, 2007 letter. Although the letter does not
specifically mention a particular closing, Appellant hired the law firm due
to the Sister’s threatened foreclosure sale of the TDL Property. Both dates
that the trial court chose for when interest began to accrue were not clearly
erroneous and were supported by competent and substantial evidence.
Accordingly, we affirm the prejudgment interest award.

   Affirmed.

DAMOORGIAN and GERBER, JJ., concur.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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