Third District Court of Appeal
State of Florida
Opinion filed August 9, 2017.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D16-1766 & 3D16-322
Lower Tribunal No. 12-4950
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The Zodiac Group, Inc., et al.,
Appellants/Cross-Appellees,
vs.
GrayRobinson, P.A.,
Appellee/Cross-Appellant.
Appeals from the Circuit Court for Miami-Dade County, Gill S. Freeman
and Michael A. Hanzman, Judges.
Kula & Associates, P.A., and Elliot B. Kula and W. Aaron Daniel and
William D. Mueller, for appellants/cross-appellees.
GrayRobinson, P.A., and Karen L. Stetson and Jonathan L. Gaines, for
appellee/cross-appellant.
Before SALTER, EMAS and LUCK, JJ.
SALTER, J.
These consolidated cases involve an appeal by three former clients of a law
firm regarding final judgments determining (a) their liability for unpaid attorney’s
fees and costs,1 and (b) their liability for additional attorney’s fees and costs in the
law firm’s collection action following the former clients’ rejection of proposals for
settlement.2 The law firm has “conditionally cross-appealed” the final judgment
regarding the quantum of its former clients’ liability. Finding no reversible error in
the proceedings below, we affirm the judgments in favor of the law firm. In doing
so, we also affirm the jury’s reduction of the law firm’s claim for attorney’s fees in
the jury verdict and as reflected in the final judgment, thus rendering moot and
dismissing the law firm’s conditional cross-appeal.
Two arguments warrant brief discussion: (1) the argument by
appellants/former clients The Zodiac Group, Inc. (“Zodiac”), David Felger, and
Daniel Felger, that only Zodiac could be held liable for the concededly-unpaid law
firm invoices; and (2) the argument by the appellants that the law firm’s offers of
judgment to the three former clients were unclear, were not made in good faith,
and were unenforceable.
Identity of the Clients; Joint and Several Liability
1 Case No. 3D16-322.
2 Case No. 3D16-1766.
2
In 2010, Zodiac, its President (appellant David Felger), and its Vice-
President (appellant Daniel Felger, David Felger’s son), were sued in a federal
court action in the Southern District of Florida. The eight-count, 96-page, 331-
paragraph complaint in the case alleged violations of the Lanham Act, the
Racketeer Influenced and Corrupt Organizations Act (“RICO”), conspiracy to
violate RICO, the Florida Deceptive and Unfair Trade Practices Act, Florida’s
statute prohibiting the unauthorized publication of a name or likeness, unjust
enrichment, conversion, and civil conspiracy to convert.3 Only Zodiac, (via Daniel
Felger’s signature below the corporate name) signed a three-page engagement
letter prepared by the GrayRobinson law firm as the law firm commenced its
defense of Zodiac and the Felgers. The engagement letter, however, was
addressed to Zodiac and each of the Felgers, and referred consistently to “you”
rather than to “Zodiac.”
Apparently lacking the clairvoyant powers of the plaintiff and Zodiac’s
network of psychics involved in the federal action, GrayRobinson found itself in
2011 with an unacceptable balance of unpaid invoices and moved to withdraw as
counsel due to “irreconcilable differences.” In 2012, GrayRobinson commenced
its collection action against the three appellants4 in the Miami-Dade Circuit Court,
3 The plaintiff, Linda Georgian, alleged (among other things) that she was a
celebrity psychic and that Zodiac and the Felgers made false and unauthorized
claims that Georgian had endorsed Zodiac’s network of call-in psychic readers and
services.
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alleging breach of contract, breach of a verbal agreement, and quantum meruit.
The Felgers then filed affidavits denying that they were individually responsible
for the legal fees incurred by GrayRobinson and disputing the value of the firm’s
legal services. They also filed counterclaims against the law firm for “breach of
fiduciary duty” and “breach of professional duty,” and demanded trial by jury.
After many procedural twists and turns, the trial court entered an amended
final judgment against all three defendants, jointly and severally, for the amount of
the reasonable attorney’s fees and costs determined by the jury in its verdict,
$115,422.26 (versus the total of $191,751.53, the unpaid fees and expenses
claimed by GrayRobinson in its complaint), plus prejudgment interest. The
defendants appealed, and GrayRobinson conditionally cross-appealed.
We affirm the amended final judgment in all respects. The trial court
correctly determined that, when the Felgers filed insurance claims for
reimbursement of fees incurred in the federal lawsuit, they maintained that they
were individually liable for those fees. Here, as in Baker v. Airguide
Manufacturing, LLC, 151 So. 3d 38, 40 (Fla. 3d DCA 2014), the Felgers could not
rely on their affidavits to repudiate their own admissions of individual liability to
their insurer (and receipt of reimbursement for some of their payments to
GrayRobinson). See also Trage v. 311 Meridian & 3rd St., LLC, 924 So. 2d 925
4The complaint named a fourth defendant, Matthew Perez, but the claim against
Mr. Perez was not adjudicated in the final judgments. He is not a party on appeal.
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(Fla. 3d DCA 2006); Elison v. Goodman, 395 So. 2d 1201, 1202 (Fla. 3d DCA
1981). The jury’s verdict regarding the reasonableness of the fees and costs
incurred, rendered after hearing evidence from both sides and their experts, will
not be disturbed here.
The Proposals for Settlement
In Case No. 3D16-1766, the issue is whether the separate “demands for
judgment/proposals for settlement” served by GrayRobinson on the defendants
pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida
Statutes (2012), were enforceable.
GrayRobinson served four separate proposals for settlement, though only
three are pertinent here. The offer to Zodiac was for $140,000.00, and included a
release of all the defendants had it been accepted and the settlement amount paid to
GrayRobinson. The offer to David Felger was for $40,000.00, and included a
release limited to David Felger, had the offer been accepted and the settlement
amount paid. The offer to Daniel Felger was for $60,000.00, and included a
release limited to Daniel Felger, had the offer been accepted and the settlement
amount paid.
Zodiac and the Felgers argue that the offers were unclear and were made in
bad faith, citing cases such as State Farm Mutual Auto Insurance Co. v. Nichols,
932 So. 2d 1067, 1079 (Fla. 2006). We disagree. The offers are not unclear, each
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complies with Rule 1.442 and section 768.79, and the appellants made no showing
of bad faith. The proposals were separate proposals, not joint proposals, made to
each defendant, individually, to evaluate and settle with GrayRobinson
“irrespective of the other parties’ decisions.” Attorneys’ Title Ins. Fund, Inc. v.
Gorka, 36 So. 3d 646, 650 (Fla. 2010); Saewitz v. Saewitz, 79 So. 3d 831, 833 n. 1
(Fla. 3d DCA 2012). We thus also affirm the final judgments for attorney’s fees
and costs reviewed in Case No. 3D16-1766.
Final judgments affirmed in the main appeals; GrayRobinson’s “conditional
cross-appeal” rendered moot and dismissed.
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