       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 11, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2289
                          Lower Tribunal No. 14-7996
                             ________________


                       CK Regalia, LLC, etc., et al.,
                                   Appellants,

                                        vs.

          John Thornton and Do Campo & Thornton, P.A.,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Stanford Blake,
Judge.

     Stok Folk + Kon and Robert A. Stok, for appellants.

     Kaplan Zeena and Laura C. Douglas, for appellees.


Before SUAREZ, SALTER and EMAS, JJ.

     EMAS, J.
      INTRODUCTION

      CK Regalia, LLC, Abraham Cohen and La Mansion, LLC (collectively “the

Former Clients”) appeal an order dismissing their complaint against John Thornton

and Do Campo & Thornton, P.A. (collectively “Do Campo & Thornton”) with

prejudice. For the reasons that follow, we affirm.

      FACTS AND BACKGROUND

      Do Campo & Thornton entered into three separate contingency fee

agreements with the Former Clients to represent their interests in claims related to

the development of a luxury condominium project on Sunny Isles Beach (the

“Regalia Project”). Specifically, the Former Clients contended they were entitled

to certain profits from sales of units in the Regalia Project. The fee agreements

were entered into on January 23 and March 6, 2013, and provided that Thornton

would receive, as compensation for his services, 25% of any recovery through the

time of filing answers or a demand for appointment of arbitrators; or 40% of any

recovery through the trial of the case on the first $2 million of the recovery, plus

30% of any recovery between $2 million and $3 million, plus 20% of any recovery

in excess of $3 million.

      At some point the Former Clients, evidently dissatisfied with the services of

Thornton & Do Campo, discharged Thornton & Do Campo and hired new counsel,

who later filed actions against the various entities from whom the Former Clients



                                         2
claimed they were entitled to recover profits.      Those lawsuits were filed on

November 1, 2013 (Case No. 13-34375 CA 01, CK Regalia, LLC v. Jain) and

December 10, 2013 (Case No. 13-38098, JAAF Holdings, LLC v. Golden Beach

Dev., LLC).      On February 26, 2014, Thornton filed a notice of charging lien in

Case No. 13-34375 (“the Ongoing Action”), which case was and remains pending

in the trial court.

       Thereafter, the Former Clients filed a separate lawsuit (the Declaratory

Action) against Thornton & Do Campo, requesting a determination of the parties’

“rights, status or other legal or equitable relations and interests regarding” the

charging lien, and seeking to discharge Thornton & Do Campo’s charging lien in

the Ongoing Action. In essence, the Former Clients sought a declaration that the

charging lien was invalid and unenforceable, premised upon allegations that:

Thornton & Do Campo had done no work entitling it to a charging lien on any

recovery in the Ongoing Action; and the retainer agreement between Thornton &

Do Campo and the Former Clients violated various provisions of the Florida Rules

of Professional Conduct, rendering the charging lien invalid.

       Thornton & Do Campo filed a motion to dismiss with prejudice, asserting

that the Complaint failed to state a cause of action upon which relief may be

granted, and that the Declaratory Action was premature and improper under

Florida law because the Ongoing Action—to which the notice of charging lien



                                         3
related—remained pending. Alternatively, Thornton & Do Campo sought an order

transferring the Former Clients’ Declaratory Action against Thornton & Do Campo

to the judge presiding over the Ongoing Action, together with an abatement of the

Declaratory Action pending resolution of the Ongoing Action.

      A hearing on the motion to dismiss was held and the trial court dismissed

the Clients’ Declaratory Action with prejudice.1 This appeal followed.

      ANALYSIS

      We review de novo the order dismissing the complaint for failure to state a

cause of action. Morin v. Florida Power & Light, 963 So. 2d 258 (Fla. 3d DCA

2007).

      Charging liens in Florida are an equitable right and a creature of common

law. Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428

So. 2d 1383, 1384 (Fla. 1983).        Such liens have been recognized in our

jurisprudence for more than 150 years, during which time our courts have

established requirements for, and procedures governing, their validity and

enforcement. Id. See e.g., Nichols v. Kroelinger, 46 So. 2d 722 (Fla. 1950);

Greenfield Villages v. Thompson, 44 So. 2d 679 (Fla. 1950); Carter v. Davis, 8


1 Consistent with the alternative remedy proposed by Thornton & Do Campo, the
trial court offered the Former Clients the option of having the Declaratory Action
transferred and abated, rather than dismissed with prejudice. The Former Clients
declined this option and the court thereafter dismissed the complaint with
prejudice.

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Fla. 183 (1858); Carter v. Bennett, 6 Fla. 214 (1855). There are no requirements

for perfecting a charging lien beyond the giving of timely notice to the client.

Baucom, 428 So. 2d at 1385. More importantly for our purposes, an attorney’s

ability to enforce a charging lien under a contingency fee agreement is dependent

upon the occurrence of the contingency: a recovery in the underlying matter in

which the attorney provided legal services. Both parties to the appeal agree that,

unless the Former Clients obtain a recovery in the Ongoing Action, the charging

lien cannot be enforced. Until the occurrence of this contingency, there is nothing

to which the charging lien can attach. See Rosenberg v. Levin, 409 So. 2d 1016,

1021 (Fla. 1982) (holding that an action upon a charging lien in a contingency fee

arrangement must be deferred until “the successful occurrence of the contingency.

If the client fails in his recovery, the discharged attorney will similarly fail and

recover nothing.”).

      It is with this background in mind that we analyze the issues presented. The

thrust of the Former Clients’ contention (both below and on appeal) is that the

charging lien is invalid. Whether the Former Clients are ultimately correct in this

assertion, however, is presently beside the point. The Former Clients’ Declaratory

Action2 seeks nothing more than an advisory opinion, because unless and until the

2 The Former Clients also asserted a claim that the retainer agreement violated the
provisions of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and
Florida Rules of Professional Conduct, rendering the subsequent notice of charging
lien invalid. The trial court correctly determined that this claim failed to state a

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Former Clients obtain a recovery in the Ongoing Action, Thornton & Do Campo’s

charging lien is not ripe and a determination of its validity premature.   Moreover,

the case law has consistently held that the proper forum for adjudicating the

validity, enforceability and amount of a charging lien is with the trial judge before

whom the underlying action is pending:

      The law is settled in this jurisdiction that a litigant should not be
      permitted to walk away with his judgment and refuse to pay his
      attorney for securing it. It is further consistent with law that an
      attorney's lien in a case like this be enforced in the proceeding where
      it arose. The parties are before the court, the subject matter is there,
      and there is no reason whatsoever why they should be relegated to
      another forum to settle the controversy.

In re Warner’s Estate, 35 So. 2d 296, 298-99 (Fla. 1948). See also Litman v. Fine,

Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88 (Fla. 3d DCA

1987).   Any claims the Former Clients may have regarding the validity or

enforceability of the charging lien can be presented (at the appropriate time) to the

trial court judge presiding over the Ongoing Action.      See State, Dep’t of Envt’l

Protection v. Garcia, 99 So. 3d 539 (Fla. 3d DCA 2011) (holding “when the issue

presented in a declaratory action is the subject of an earlier filed suit in which the




cause of action. See Law Office of David J. Stern, P.A. v. State, 83 So. 3d 847
(Fla. 4th DCA 2011); State v. Shapiro & Fishman, LLP, 59 So. 3d 353 (Fla. 4th
DCA 2011). See also, Baker v. Baptist Hosp., Inc., 115 So. 3d 1123 (Fla. 1st DCA
2013) (holding filing of a hospital lien is the pursuit of a legal remedy, and thus,
not within the definition of “trade or commerce”).

                                          6
plaintiff can secure full relief, the trial court should not consider the request for

declaratory relief”).

      The Former Clients assert on appeal that they will be prejudiced if a

determination of the validity of the charging lien must await the outcome of the

Ongoing Action. The Former Clients contend that, until they know whether the

charging lien is valid and, if valid, the amount of that lien, they cannot reasonably

determine whether to settle the Ongoing Action. This argument was not presented

below. Moreover, such a position is unavailing and, if adopted, would result in

additional and unnecessary litigation over a charging lien whose very existence is

contingent on a recovery in the Ongoing Action. Taken to its logical conclusion,

every charging lien in a contingency fee matter could be litigated as to validity and

amount (whether the litigation is commenced by the former attorney or the former

client) before the requisite contingency ever occurs. We decline the invitation to

adopt such a position, and hold that the trial court properly dismissed the action

with prejudice.3

3 In their reply brief, the Former Clients express concern that a dismissal with
prejudice will bar them from later contesting the validity of the charging lien.
First, we observe that the trial court dismissed the action with prejudice at the
request of the Former Clients, who sought rendition of a final, appealable order.
Second, and as discussed supra, the Former Clients rejected the proposed
alternative of transferring and abating the Declaratory Action. Finally, and given
the rationale for our decision, the Former Clients may contest the validity of the
notice of charging lien and the charging lien itself (including, if appropriate, any
amounts to which Thornton & Do Campo may be entitled) in the appropriate
forum upon the occurrence of the contingency.

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Affirmed.




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