       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 29, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-436
                         Lower Tribunal No. 14-26490
                             ________________


                        Piero Salussolia, P.A., etc.,
                                    Appellant,

                                        vs.

   Gianni Nunnari and Hollywood Gang Productions, LLC, etc.,
                                    Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, John
Schlesinger, Judge.

     Becker & Poliakoff, P.A., and Jon Polenberg, Jude C. Cooper, and Yasin
Daneshfar (Fort Lauderdale), for appellant.

      Crabtree & Auslander, and John G. Crabtree, Charles M. Auslander, Brian
C. Tackenberg, and George R. Baise Jr.; Jason B. Giller, for appellees.


Before ROTHENBERG, LAGOA, and EMAS, JJ.

     ROTHENBERG, J.

     The plaintiff below, Piero Salussolia, P.A. (“the law firm”), appeals from the
trial court’s order granting the defendants’, Gianni Nunnari and Hollywood Gang

Productions, LLC (collectively, “the clients”), motion for judgment on the

pleadings as to all counts of the complaint. We affirm the portion of the trial

court’s order granting judgment on the pleadings as to the law firm’s claim against

the clients for payment of a “success fee.” However, because we conclude that the

complaint sufficiently pleads a cause of action for breach of contract for legal

services rendered by the law firm under the retainer provision of the

Attorney/Client Engagement Agreement (“the Agreement”), or in the alternate for

quantum meruit, we reverse that portion of the order granting judgment on the

pleadings as to the portion of Count I pertaining to fees for services under the

retainer provision of the Agreement and Counts II and III.

        After a $13,200,000 judgment was entered against the clients, the clients

retained the law firm to appeal the judgment, negotiate a settlement with the

judgment creditors for a reduced amount, and/or pursue other measures to offset

the judgment amount. The clients and the law firm entered into the Agreement,

which contains two separate fee provisions—a monthly retainer fee provision to

offset the fees incurred during the litigation and a success fee provision.1

1   The success fee provides as follows:
        2. Success Fee. A success fee of a percentage, to be agreed upon
        amongst the parties hereto, based on the amount by which Client’s
        Judgment amount is reduced will be charged as a success fee NOT TO
        EXCEED 1 MILLION. For example, if Client owes $10,000.00 on the
        Judgment and through the Appeal and/or the Settlement, that amount

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      The law firm filed a three-count complaint, seeking damages against the

clients under three alternative theories—breach of contract (Count I), open account

(Count II), and quantum meruit (Count III). The law firm alleged in its complaint

that it performed under the Agreement by negotiating a settlement with the

judgment creditors that reduced the judgment by millions of dollars. The law firm

further alleged that despite the law firm’s performance under the Agreement and

the tendering of invoices for the fees due under the Agreement, the clients have

failed to pay a success fee or to fully compensate the law firm for its services under

the Agreement.

      The clients filed their answer, affirmative defense, and a counterclaim. The

counterclaim seeks disgorgement of attorney’s fees paid to the law firm and an

equitable accounting. Thereafter, the clients filed a motion for judgment on the

pleadings. Following a hearing, the trial court granted the motion as to all three

counts, finding that the law firm’s “claims are unsupportable, most significantly

based upon John Alden Life Ins. Co. v. Benefits Management [Associates], Inc.,

675 So. 2d 188 (Fla. 3d DCA 1996).” This appeal followed.

      “[I]n ruling on a defendant’s motion for judgment on the pleadings, all the
      is reduced to $6,000.00 saving Client $4,000.00, then the Firm
      success fee shall be a percentage of $4,000.00. Success fee shall be
      payable to the Firm immediately upon termination of the Appeal
      and/or the full execution of the Settlement Agreement.

(emphasis in bold; handwritten provision in italics).


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allegations set forth in the complaint must be taken as true and all the allegations in

the answer, which are automatically denied, must be accepted as false.”

Tanglewood Mobile Sales, Inc. v. Hachem, 805 So. 2d 54, 55 (Fla. 2d DCA 2001).

Further, “[a] motion for a judgment on the pleadings should only be granted if the

moving party is entitled to a judgment as a matter of law.” Briarwinds Condo.

Ass’n v. Rigsby, 51 So. 3d 532, 533 (Fla. 3d DCA 2010).

      A review of the complaint and the Agreement, which was attached to the

complaint in the instant case, reflects that the law firm’s claims are based on the

clients’ alleged failure to pay fees due under the Agreement—the fees for legal

services rendered by the law firm under the retainer provision and a success fee.

We agree with the trial court’s finding that the success fee provision, which fails to

include essential terms, is unenforceable. See John Alden, 675 So. 2d at 189

(holding that a contractual provision to negotiate a bonus payment in the future

“was merely an ‘agreement to agree’ in the future about the bonus and hence

unenforceable as a matter of law”). However, as to the law firm’s claims based on

the alleged unpaid attorney’s fees due under the retainer provision, we find that the

allegations in the complaint were sufficiently pled to withstand the motion for

judgment on the pleadings. Accordingly, we affirm the order under review as it

pertains to the success fee, but reverse the order under review as it pertains to the

alleged unpaid attorney’s fees due under the retainer provision of the Agreement.



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Affirmed in part, reversed in part, and remanded for further proceedings.




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