              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT



HENSLEY CHALFANT, P.A.,          )
                                 )
           Appellant,            )
                                 )
v.                               )                   Case No.   2D13-3077
                                 )
GUARDIANSHIP OF THOMAS D.        )
FLANNIGAN,                       )
                                 )
           Appellee.             )
________________________________ )

Opinion filed November 18, 2015.

 Appeal from the Circuit Court for
 Pinellas County; Jack R. St. Arnold,
 Judge.

 Jeffrey W. Hensley of Jeffrey W.
 Hensley, P.A., Palm Harbor; Bard D.
 Rockenbach and Adam J. Richardson
 of Burlington & Rockenbach, P.A.,
 West Palm Beach, for Appellant.

 Richard L. Pearse, Jr. of Pearse &
 Stinson, P.A., Clearwater, for Appellee.



KELLY, Judge.


             Hensley Chalfant, P.A. ("Hensley"), appeals from an attorney's fee order in

a guardianship proceeding that awarded a contingency fee based on less than the total
amount the firm recovered on behalf of Thomas D. Flannigan. Because Hensley's fee

contract provided for a contingency fee based on the total amount the firm recovered,

we reverse.

              Hensley was retained by Flannigan's guardian after Flannigan sustained a

traumatic brain injury when he fell from a second floor balcony while conducting an

inspection of a home under construction. Hensley and the guardian entered into a

contingency fee contract, which the trial court approved. In pertinent part, the contract

states:

              The compensation for the services of HENSLEY
              CHALFANT, P.A. for the prosecution of the client’s case
              against any party or insurer, will be calculated on a
              contingency percentage fee basis. If there is no recovery,
              there is no fee. If there is a recovery, the percentage to be
              paid depends on the amount of the recovery. The
              percentage will be calculated on the gross recovery, not on
              the net recovery, including any sum representing recovered
              expenses and costs.

About two years after being retained, Hensley negotiated a series of settlements with

the three defendants totaling $2,500,000.

              The dispute which gave rise to this appeal began when the guardian

notified Hensley that she objected to his charging a contingency fee based on the full

amount of the settlement on the ground that such a fee would be clearly excessive

because Flannigan had previously been represented by another attorney who had

negotiated a settlement with two of the defendants during a presuit mediation. The

defendants had agreed to settle for less than Hensley ultimately obtained. For the

purposes of this appeal, it is unnecessary to detail the events that led to the unravelling

of this settlement. Suffice it to say that Flannigan and later the guardian, repudiated the




                                            -2-
settlement almost as soon as it was entered into and they maintained that position,

including defending against a lawsuit the defendants brought to enforce the settlement.

                In spite of disavowing the original settlement, the guardian took the

position that Hensley was only entitled to a contingency fee based on the amount he

obtained that exceeded the amount of the original settlement.1 After an evidentiary

hearing, the trial court agreed with the guardian and ruled against Hensley. Because

the facts are essentially undisputed, we review the trial court's order de novo. See

Kirton v. Fields, 997 So. 2d 349, 352 (Fla. 2008) (citing D'Angelo v. Fitzmaurice, 863

So. 2d 311, 314 (Fla. 2003) (stating that the standard of review for pure questions of law

is de novo)).

                The guardian's argument is flawed in several respects. First, it is

contradicted by the language of the fee agreement which plainly requires a fee based

on the "gross recovery." Second, the guardian's argument that the fee is excessive is

premised on the contention that there were two valid settlements, only one of which

came through Hensley's efforts. This is inconsistent with the guardian's position

throughout the proceedings below that there was no enforceable settlement. Finally,

the guardian's own actions belie her belief that Hensley's fee was limited to the

difference between the disavowed settlement and the subsequent settlement. When

Hensley settled with the first defendant for substantially more than was negotiated in the

original settlement, the guardian acknowledged his fee was to be a percentage of the

total amount obtained. It was not until Hensley obtained settlements with the remaining




            The attorney who negotiated the original settlement received a fee based
                1

on quantum meruit after his contingency fee agreement was found to be unenforceable.


                                             -3-
two defendants that the guardian balked at paying a fee based on the entire settlement.

Because Hensley's efforts resurrected a settlement agreement that was otherwise

"dead in the water," the firm is entitled to be compensated on the full amount of the

recovery.

              Accordingly, we reverse and remand for the trial court to enter an order

consistent with this opinion.

              Reversed and remanded with instructions.



NORTHCUTT, J., Concurs.
VILLANTI, C.J., Concurs specially.




VILLANTI, Chief Judge, Specially concurring.

              While I concur in the majority opinion, I do so only because Attorney

Jeffrey Hensley orally agreed with the guardian, and reiterated in sworn testimony to the

court, that he "would be collecting a fee on the aggregate recovery and that out of that

full total fee, then whatever Mr. Granese is entitled to be paid would come out of that

and be offset from it or reduced from it." Were it not for this oral agreement, Hensley

would be entitled under his contingency fee contract to collect his entire fee from the

guardian in addition to the amounts owed by the guardian to Mr. Granese. And if that

were the case, I would agree with the trial court that the total fee to be paid by the

guardian, which could be as much as 67% of the first $1 million, would be excessive.

See Florida Bar v. Moriber, 314 So. 2d 145, 148 (Fla. 1975) (noting that the question of

whether a particular attorney's fee is excessive turns on multiple factors, including those




                                            -4-
listed in what is now Florida Rule of Professional Conduct 4-1.5). I note that all too

often a successor attorney's contingency fee agreement fails to completely and explicitly

set forth the parties' expectations and agreement concerning the issue of duplicative fee

awards should both lawyers claim fees. I recognize that the Florida Bar's form

contingency fee agreement does not include a standard provision dealing with this

issue. However, despite the absence of a standard provision, successor attorneys

should consider this issue and address it in an addendum to their contingency fee

agreements or they run the risk of having their contracted-for awards deemed

excessive.




                                           -5-
