United States of America et al v. Advanced Biohealing, Inc.

Filing 501

ORDER granting 497 Motion for Reconsideration / Clarification. See Order for details. Signed by Magistrate Judge Anthony E. Porcelli on 12/6/2021. (BMM)

Case 8:11-cv-00176-CEH-AEP Document 501 Filed 12/06/21 Page 1 of 5 PageID 18539

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
ex rel. BRIAN VINCA and
JENNIFER STAUP SWEENEY,
Plaintiffs,
v.

Case No. 8:11-cv-176-JSM-AEP

ADVANCED BIOHEALING, INC.,
Defendant.
/
ORDER
This cause comes before the Court on Barry A. Cohen, P.A.’s (“Cohen
Firm”) Emergency Motion for Clarification of Report and Recommendation
(“Motion”) (Doc. 497) and Relator Brian Vinca’s (“Vinca”) Response to the Motion
and Request for Sanctions (“Response”) (Doc. 498). On November 29, 2021, the
undersigned entered a Report and Recommendation recommending that Former
Counsel’s1 charging liens be recognized and enforced to the extent that Former
Counsel be allotted a quantum meruit award in the amount of $6,128,500 (Doc. 495).
As, the Motion correctly states, the Report and Recommendation (Doc. 495) is
silent as to the distribution of any accrued prejudgment interest, and the Cohen Firm
requests an urgent clarification on the matter so that the parties may, if necessary,
timely address the issue in an objection for the district judge’s consideration. For
1

Former Counsel includes the Cohen Firm and Saady & Saxe, P.A.

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the following reasons, the undersigned finds the Motion is due to be granted and
that the Report and Recommendation (Doc. 495) be supplemented by this Order as
provided below.
Vinca essentially asserts that Former Counsel is not entitled to any accrued
prejudgment interest until an Order determining entitlement to attorney’s fees is
signed by a district judge in this matter (Doc. 498, at 3-4) (citing Quality Engineered
Installation, Inc. v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996); Bremshey v. Morrison,
621 So. 2d 717 (Fla. 5th DCA 1993); and Arabia v. Siedlecki, 789 So. 2d 380 (Fla.
4th DCA 2001)). However, as Vinca recognizes in his Response, interest does not
solely accrue based upon a court determination, rather “interest [may accrue] from
the date the entitlement to attorney fees is fixed through agreement, arbitration award,
or court determination, even though the amount of the award has not yet been
determined.” Quality Engineered Installation, 670 So. 2d at 931 (emphasis added).
Here, the issue regarding prejudgment interest on attorney’s fees revolves
around a quantum meruit determination based upon an underlying attorney-client
contractual agreement between Vinca and Former Counsel. Notably, two of the three
cases relied upon by Vinca, Quality Engineered Installation and Bremshey, are factually
dissimilar, as the attorney’s fees in those cases were owing based upon a prevailing
party award and not an attorney-client contractual agreement. In Quality Engineered
Installation the court examined when interest on attorney’s fees began to accrue for
a prevailing party after receiving an arbitration award. See Quality Engineered
Installation, 670 So. 2d at 930. While in Bremshey, the court examined when interest

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on attorney’s fees began to accrue for a prevailing party upon a court determination
that the opposing party failed to raise a justiciable issue of law or fact pursuant to
Section 57.105, Florida Statutes (1989). See Bremshey, 621 So. 2d at 717. However,
the third case cited by Vinca, Arabia, does discuss accrued prejudgment interest in
relation to a quantum meruit award and is instructive on the instant matter. See
Arabia, 789 So. 2d at 384.
In Arabia, the court held that “[b]y tendering payment . . . an owing party can
protect itself against owing great amounts of interest caused by delay in determining
the amount of fees owed.” Id. Implicit in the Arabia court’s ruling is a finding that
based upon the underlying retainer agreement, interest began to accrue on the
attorney’s fees when the former client received a recovery in the form of a monetary
payment from the defendant in the underlying litigation. Such a finding is evident
given that the Arabia court concluded that prejudgment interests on the attorney’s
fees needed to be recalculated given that the client tendered to former counsel a
check for $223,835.59 upon receiving a payment from the defendant in the
underlying litigation and “interest ceases to accrue on amounts of attorney fees up
to the amount for which an actual tender of payment is made.” Id. Thus, it appears,
even in the context of a quantum meruit determination, that in an attorney-client
contractual relationship, the underlying retainer agreement should control when
entitlement to attorney’s fees is triggered and that prejudgment interests should
accrue for any unpaid attorney’s fees after entitlement to the fees has been triggered.
It seems logical that the retainer agreement should control when interest accrues,

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otherwise, if a court determination was necessary on a disputed charging lien it
could incentivize or reward a client to contest reimbursement of attorney’s fees and
obtain interest-free use of the money for an extended period of time. See Quality
Engineered Installation, 670 So. 2d 929, 930 (Fla. 1996) (reasoning that using the date
of entitlement as the date of accrual serves as a deterrent to the owing party from
delaying payment of any amounts owed).
Here, the Retainer Agreement between Vinca and Former Counsel provides,
in essence, that Vinca is obligated to pay attorney’s fees upon any recovery (Doc.
491-1). Vinca obtained a recovery by the Court’s Order on Joint Motion for Release
of Funds in Court Registry (“Release of Funds Order”) (Doc. 229). Notably, the
Release of Funds Order distributed monies, as agreed upon by all parties, by which
Vinca recovered $10,725,000 plus 12.41% of any accrued interest, while $7,150,000
plus 8.28% of any accrued interest was to remain in the Court Registry pending
resolution of Former Counsel’s charging liens (Doc. 229, at 2). Significantly, the
parties agreed that any accrued interest in connection to the disputed attorney’s fees
under Former Counsel’s charging liens shall remain in the Court Registry. As such,
it appears that the parties understood that interest was accruing on the attorney’s
fees and could be payable to Former Counsel since Vinca obtained a recovery in the
matter as contemplated by the Retainer Agreement.
Regardless, the Court need not specifically determine whether the terms of
the Retainer Agreement control when interest began to accrue upon the attorney’s
fees, since, ultimately, the resolution of an attorney’s charging lien is equitable in

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nature. See Nichols v. Kroelinger, 46 So. 2d 722, 724 (Fla. 1950). Here, equity dictates
that any interest accrued upon the $7,150,000 should be distributed commensurate
to the principal amounts.
As detailed in the Report and Recommendation (Doc. 495), in consideration
of an appropriate quantum meruit award, the undersigned ultimately recommended
that 13% be reduced from the principal amount of $7,150,000 that is currently held
in the Court Registry.2 For the same reasons outlined in the Report and
Recommendation (Doc. 495) any accrued prejudgment interest should also be
reduced at the same rate of 13%. In other words, any accrued interest should be
divided as 87% to Former Counsel and 13% to Vinca.
Accordingly, the Cohen Firm’s Emergency Motion for Clarification of
Report and Recommendation (Doc. 497) is GRANTED to the extent that the
Report and Recommendation (Doc. 495) is hereby supplemented to include that
any accrued interest should be divided commensurate to the principal sum in that
87% of the accrued interest should be allotted to Former Counsel and the remaining
13% to Vinca.
DONE AND ORDERED in Tampa, Florida, on this 6th day of December
2021.

cc:

Hon. Charlene Edwards Honeywell
Counsel of Record

An additional $92,000 was offset from the ultimate award given that $92,000 in statutory
fees had been previously paid.
2

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