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Florida Fourth DCA rules that contingency fee agreement was invalid where there was insufficient evidence that client ratified the agreement after recovering from coma

On April 4, 2018, in O’Malley v. Freeman, No. 4D17-1500, the Florida Fourth DCA reversed a trial court award of attorney’s fees and costs to a law firm that had represented the plaintiff in a motor vehicle negligence case on a contingency fee basis. The plaintiff had been in a coma when the contingency fee agreement was signed by his mother on his behalf. However, she did not have a power of attorney and had not been appointed his legal guardian. At some point after he recovered from his coma, he terminated the law firm and proceeded to a successful conclusion of the case with another law firm. Citing Lee v. Thompson, 168 So. 848, 850 (Fla. 1936), the Fourth DCA acknowledged that a “promise to honor a contingent fee contract after competency is restored may suffice for ratification, but the promise must be positive and explicit. A mere acknowledgment is not sufficient.” The Fourth DCA concluded that the lawyer’s testimony that he had spoken with the plaintiff on several occasions about the case was not sufficient evidence of ratification. However, the Fourth DCA also acknowledged that on remand the trial court could make an award to the law firm on a quantum meruit basis.

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