Andrea Virgin v. Ana M. Frexes

Third District Court of Appeal
                                  State of Florida

                            Opinion filed April 22, 2026.
          Not final until disposition of timely filed motion for rehearing.

                               ________________

                    Nos. 3D24-1399; 3D24-1400; 3D24-1402
                      Lower Tribunal No. 16-19142-CA-01
                             ________________


                            Andrea Virgin, et al.,
                                    Appellants,

                                        vs.

                                 Ana M. Frexes,
                                     Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.

      Podhurst Orseck, P.A., and Stephen F. Rosenthal, and Christina H.
Martinez, for appellants.

     Zarco Einhorn Salkowski, P.A., and Robert Zarco and Brenda Phang;
The Ferraro Law Firm, P.A., and Leslie B. Rothenberg, for appellee.

Before FERNANDEZ, GORDO1 and GOODEN, JJ.




1
    Did not participate in the oral argument.
      GOODEN, J.

      This appeal examines the tension between a client’s right to discharge

counsel and a referral attorney’s right to be paid under a signed

representation agreement. To resolve this tension, we must determine two

key issues: first, whether a client possesses the authority to discharge a

referral attorney; and if so, the measure of compensation owed to the referral

attorney should such a discharge occur. We reverse and remand for further

proceedings consistent with this opinion.

                                      I.

      On November 10, 2015, PEBB Enterprises chartered an Execuflight

plane for its employees. Tragically, the plane crashed into an apartment

building while attempting to land in Akron, Ohio. Along with seven co-

workers, Thomas Jay Virgin died.

      His widow, Appellant Andrea Virgin, turned to her aunt—attorney and

Appellee Ana Frexes—to help navigate the legal landscape. But Frexes’

practice focuses on worker’s compensation.       So Frexes referred her to

Appellant Podhurst Orseck, P.A., which handles wrongful death and aviation

accident claims and litigation.




                                      2
     After meeting with representatives from the firm, Virgin retained

Podhurst to represent her on a contingency basis.2 Virgin, Podhurst, and

Frexes all signed the representation agreement. 3 There is no dispute that

this agreement complied with Rule Regulating the Florida Bar 4-1.5(g).

     The scope of that agreement was for Podhurst to represent Virgin in

her “claim for damages against Execuflight, Inc., or any other persons, firms

or corporations liable, resulting from an air crash that occurred on the 10th

day of November, 2015.” It further provided:

     Podhurst Orseck, P.A., will participate in the fees set forth above,
     and Ana M. Frexes & Associates, P.A. will be responsible and
     available to the client for consultation, will participate and assist
     in preparation of the case, and will bear joint responsibility to the
     client, for its processing, up to final conclusion together with
     Podhurst Orseck, P.A. However, Podhurst Orseck, P.A. will be
     lead trial and appellate counsel.

     On the basis of work performed in accordance with the Canon of
     Ethics, and depending upon performance of services as
     anticipated under this agreement, Podhurst Orseck, P.A., will
     share in the fees derived to the extent of 75% and Ana M. Frexes
     & Associates, P.A. to the extent of 25%.




2
 Podhurst also represented families of other deceased PEBB employees. It
obtained Virgin’s informed consent to do so.
3
  A lawyer from Podhurst testified that, in his experience handling thousands
of aviation wrongful death cases, a referring family member usually waives
the referral fee to pass the resulting discount on to their grieving relative.

                                      3
     But despite the terms of the agreement and without the knowledge of

Podhurst, Frexes performed other legal work related to Thomas Jay’s death.

For instance, Frexes litigated a worker’s compensation claim that settled for

$150,000.00, resulting in the execution of a release. She also litigated a

disability case that secured an additional $14,000.00. She worked on the

probate case and resolved a red-light ticket Thomas Jay received

posthumously. And she convinced a creditor to drop its claim. While Virgin

offered to pay Frexes, Frexes declined payment. Frexes considered it to be

legal work done under the agreement.4

     In October 2016, Podhurst filed the wrongful death suit. It quickly

negotiated a global settlement with some defendants, including Execuflight.

From that settlement, Frexes received a referral fee of $309,645.00.

     Meanwhile, Virgin felt misled and upset. In an email to Frexes, she

claimed she first discovered the referral fee from the closing statement.

Frexes, for her part, maintains she disclosed the fee on several occasions,

including when the initial agreement was executed. Citing fairness, Virgin

requested that Frexes split the fee with Virgin’s mother. Frexes refused,

explaining sharing a fee with a nonlawyer constitutes a violation of the Rules


4
 At oral argument, Frexes conceded that she performed work beyond the
scope of the contract.

                                      4
Regulating the Florida Bar. Thereafter, the relationship grew “cold and

distant.”

      At that time, several claims remained pending in the lawsuit. Podhurst

continued to actively litigate these claims. Frexes continued to serve as a

referral attorney.

      In the summer of 2018, Virgin started exploring hiring another

attorney—one who focuses on this area of law—to protect her interests and

to work with Podhurst. She eventually hired Appellant Michael Olin. On

January 28, 2019, Virgin emailed Frexes expressing a desire to terminate

the relationship and hire co-counsel. Frexes responded that she is not co-

counsel, but a referring attorney.         As the referring attorney, Frexes

maintained she could not be discharged.           She reiterated that she is

“committed to [Virgin] in [her] role as referring attorney and personal counsel

in any matter.” She warned that hiring additional counsel would come at a

cost to Virgin. Virgin responded that Frexes was being replaced by Olin.

      Despite Virgin’s intent to terminate the relationship, Frexes contends

the representation continued, citing the absence of an express release of her

joint responsibility. Yet Frexes neither sought clarification nor asked Virgin

for an express release. Instead, Frexes emailed Podhurst and Olin stating

that she is part of the legal team and is “ready, willing and able to assist and

                                       5
serve in any legal capacity.” Frexes also texted Podhurst asserting, “I am

not waiving my referral fee.”

      In turn, Olin sent Frexes a letter reiterating that Virgin had discharged

her as an attorney and directed her to stop contacting Virgin. He requested

Frexes to send documentation supporting “any new compensable time or

reimbursable costs [she had incurred] since the conclusion of the prior

settlement.” Rather than doing so, Frexes filed a notice of charging lien.5

The notice maintained that Frexes was contractually entitled to a fee

“calculated as a percentage of any funds recovered” from any future

settlement.

      Meanwhile, Podhurst and Olin continued to vigorously litigate the case

against the remaining defendants. Towards the end of 2019, their efforts

resulted in a favorable settlement.         Podhurst disbursed the settlement




5
  A “charging lien is an equitable right to have costs and fees due an attorney
for services in the suit secured to him in the judgment or recovery in that
particular suit. It serves to protect the rights of the attorney.” Sinclair, Louis,
Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383,
1384 (Fla. 1983). It “attaches to the tangible fruits of the services.” L. Off.
of Michael B. Brehne, P.A. v. Porter L. Firm, LLC, 268 So. 3d 854, 855 (Fla.
5th DCA 2019). Its use is well-entrenched in Florida law. See Carter v.
Bennett, 6 Fla. 214, 258 (1855); Randall v. Archer, 5 Fla. 438, 444 (Fla.
1854).

                                        6
proceeds, except for $25,000.00 that it held in trust for the charging lien. Olin

was paid $140,000.00, which was 25% of recovered attorneys’ fees.

      For the next several years, the parties litigated the charging lien.

During this time, Frexes maintained that she was entitled to the contractual

fee and that the facts did not allow for application of quantum meruit. Frexes

finally produced her time records in 2021. These records documented over

360 hours from the date of the airplane crash, at $400 an hour, totaling

$144,099. Frexes kept some of her time contemporaneously, but had to

reconstruct other entries.

      Shortly thereafter, Virgin moved for partial summary judgment

asserting that Frexes was not entitled to the contractual fee and that she was

limited to quantum meruit. The trial court denied the motion, finding there

was a genuine dispute of material fact.

      In 2024, the trial court conducted a four-day bench trial. Frexes argued

that she was entitled to the contractual fee of $140,000.00; but, if the court

found she was co-counsel, she was entitled to $144,099.00 under the theory

of quantum meruit. Virgin, Podhurst, and Olin contended that since Frexes

was discharged before the final settlement and the occurrence of that

contingency, she was not entitled to any fee. Alternatively, they argued that,

at most, Frexes could receive $8,120.00 in quantum meruit. This amount

                                       7
was for the time incurred between the first settlement and discharge, and

that fell within the scope of the representation agreement.

     The trial court ultimately entered final judgment awarding $140,000.00

to Frexes—the amount equal to the 25% referral fee. It held Virgin, Podhurst,

and Olin jointly and severally liable for that amount. Alternatively, it found

that Frexes was entitled to the same amount of $140,000.00 under a theory

of quantum meruit. In doing so, the trial court made several legal rulings:

         • Quantum meruit only applies where the referring attorney has

            been suspended or disbarred during the representation and

            cannot fulfill his or her obligations under the contract.

         • A referral attorney cannot be discharged under Florida law.

         • Frexes was discharged without proper cause.

         • Virgin’s unilateral discharge created a legal impossibility of

            Frexes’ performance of the contract, entitling Frexes to the

            contractual fee.

      Virgin, Podhurst, and Olin each appealed. Having heard these matters

together at oral argument, we now issue this consolidated opinion.

                                       II.

      This charging lien was determined after a four-day bench trial.

Judgments rendered after a bench trial are subject to various standards of

                                       8
review. At the heart of the dispute is the trial court’s legal conclusions. See

Morales v. Morales, 388 So. 3d 901, 903 n.3 (Fla. 3d DCA 2024).

“Applications of the law—legal conclusions—are reviewed de novo.” Lopez-

Brignoni v. Fla. Dep’t of Agric. & Consumer Servs., 314 So. 3d 318, 323 (Fla.

3d DCA 2020). See also Trump Endeavor 12 LLC v. Fernich, Inc., 216 So.

3d 704, 707 (Fla. 3d DCA 2017) (“To the extent that we are reviewing the

trial court’s application of the law to its factual determinations, our standard

of review is de novo.”). To the extent the trial court’s factual findings are at

issue, we review those for competent, substantial evidence. Lopez-Brignoni,

314 So. 3d at 323.

                                       III.

      To resolve the matter before us, we first must examine whether a client

can discharge a referral attorney.       And, if so, whether Virgin properly

discharged Frexes. In communications with Virgin and the others, Frexes

contended that, as a referral attorney, she could not be discharged. The trial

court agreed. On appeal, Frexes softened that position, asserting that the

referring attorney can be terminated if he or she is expressly relieved of joint

responsibility; but that Virgin did not expressly relieve her of that obligation.

Virgin, Podhurst, and Olin maintain that a referral attorney relationship can

be severed and Frexes was discharged here.

                                       9
                                      A.

      The attorney-client relationship is a consensual relationship involving

“great personal and professional integrity and responsibility on the part of the

lawyer and an equal confidence and trust on the part of the client.” Fisher v.

State, 248 So. 2d 479, 484 (Fla. 1971). “Such relationship requires absolute

confidence in the lawyer by the client and an equal confidence in the client

by his lawyer.” Id. It demands an attorney to place the client’s interests

ahead of his or her own personal dealings and financial gain. Crigler v. State,

Dep’t of Transp., 535 So. 2d 329, 330 (Fla. 1st DCA 1988); Deal v. Migoski,

122 So. 2d 415, 417 (Fla. 3d DCA 1960).

      “When this relationship breaks down, both the attorney and the client

each have a right to dissolve the relationship.” King & Spalding LLP v.

Residences at the Bath Club Condo. Ass’n, Inc., 413 So. 3d 950, 952 (Fla.

3d DCA 2025). Indeed, a client can discharge his attorney—with or without

cause—at any time. Harvey v. Rowe, 192 So. 878, 880 (Fla. 1940); Carey

v. Town of Gulfport, 191 So. 45, 46 (Fla. 1939). “The right of a client to

change his attorney at will is based on necessity, in view of both of the

delicate and confidential relation between them and of the evil engendered

by friction and distrust.” U.S. Sav. Bank v. Pittman, 86 So. 567, 573 (Fla.

1920). See also Rosenberg v. Levin, 409 So. 2d 1016, 1021 (Fla. 1982)

                                      10
(“These considerations dictate that clients be given greater freedom to

change legal representatives than might be tolerated in other employment

relationships. We approve the philosophy that there is an overriding need to

allow clients freedom to substitute attorneys without economic penalty as a

means of accomplishing the broad objective of fostering public confidence in

the legal profession.”).

      Frexes urges us to treat referring attorneys differently. Yet the Rules

Regulating the Florida Bar do not distinguish between classes of attorneys—

such as lead counsel or referral counsel—when defining the client’s right to

terminate. Instead, Rule 4-1.16 (“Declining or Terminating Representation”)

applies broadly to “lawyers.”   It provides: “[A] lawyer shall not represent a

client or, where representation has commenced, shall withdraw from the

representation of a client if . . . the lawyer is discharged[.]” R. Regulating

Fla. Bar 4-1.16(a)(3). The Rules define a “lawyer” simply as “a person who

is a member of The Florida Bar or otherwise authorized to practice in the

state of Florida.” R. Regulating Fla. Bar, ch. 4, Preamble, Terminology. And

so, the client’s power to discharge counsel is universal, applying to referral

attorneys with the same force as it does to lead counsel.

      This is further reinforced by Florida’s framework for legal referrals.

Florida does not follow a pure referral model where the lawyer receives a fee

                                     11
simply for passing a case to another lawyer. Instead, the Rules Regulating

the Florida Bar adopt a different model—one imposing ongoing obligations

to the client. Rule 4-1.5(g) provides:

      Subject to the provisions of subdivision (f)(4)(D), a division of fee
      between lawyers who are not in the same firm may be made only
      if the total fee is reasonable and:

           (1) the division is in proportion to the services performed
      by each lawyer; or

            (2) by written agreement with the client:

                 (A) each lawyer assumes joint legal responsibility for
            the representation and agrees to be available for
            consultation with the client; and

                  (B) the agreement fully discloses that a division of
            fees will be made and the basis upon which the division of
            fees will be made.

R. Regulating Fla. Bar. 4-1.5(g). Rule 4-1.5(f)(4)(D) states:

      As to lawyers not in the same firm, a division of any fee within
      subdivision (f)(4) must be on the following basis:

             (i) To the lawyer assuming primary responsibility for the
      legal services on behalf of the client, a minimum of 75% of the
      total fee.

             (ii) To the lawyer assuming secondary responsibility for the
      legal services on behalf of the client, a maximum of 25% of the
      total fee. Any fee in excess of 25% will be presumed to be clearly
      excessive.

R. Regulating Fla. Bar. 4-1.5(f)(4)(D)(i)–(ii).



                                         12
      At bottom, the referring lawyer will either recover based on the services

they render or by agreement in which they accept a percentage in exchange

for assuming joint responsibility. R. Regulating Fla. Bar. 4-1.5(g). Joint

responsibility entails the obligations stated in Rule 4-5.1. See R. Regulating

Fla. Bar. 4-1.5(g), Comment. The joint responsibility requirement is what

transforms a referral attorney from a mere middleman into a full fiduciary of

the client. It places the referral attorney on the same level as other attorneys

working on the case. So it necessarily follows that a client can discharge

them in the same manner.

      Stated another way, if a referral attorney could not be discharged, they

would have a “guaranteed” contract that supersedes the client’s absolute

right to choose their counsel. And this cannot be. It would restrict the client’s

freedom to choose their counsel and effectively be a penalty. See Fla. Bar

v. Hollander, 607 So. 2d 412, 415 (Fla. 1992); Fla. Bar v. Doe, 550 So. 2d

1111, 1113 (Fla. 1989).

      Accordingly, the trial court erred as a matter of law by ruling that a

referral attorney cannot be discharged. 6 See Barwick, Dillian & Lambert,



6
  We express no opinion on how the discharge of the referral attorney affects
the existing contract with lead counsel, nor do we address whether the
remaining parties should execute a new representation agreement.

                                       13
P.A. v. Ewing, 646 So. 2d 776, 778 (Fla. 3d DCA 1994) (recognizing that a

referral attorney can be discharged); Sohn v. Brockington, 371 So. 2d 1089,

1093 (Fla. 1st DCA 1979) (“The right to discharge is of little value if the client

must risk paying the full contract price for services not rendered upon a

determination by a court that the discharge was without legal cause. The

client may frequently be forced to choose between continuing the

employment of an attorney in whom he has lost faith, or risking the payment

of double contingent fees equal to the greater portion of any amount

eventually recovered.”).

                                       B.

      To discharge a referral attorney, Frexes maintains that the client must

expressly waive or discharge that attorney from joint responsibility. But

nothing in the Rules Regulating the Florida Bar or any other authority require

such a release or waiver. See generally R. Regulating Fla. Bar. 4-1.16; Doe,

550 So. 2d at 1113 (“An attorney cannot exact a penalty for a right of

discharge.”). And one would not be required because “[a]fter discharge

neither the attorney nor client is bound by the terms of the contract . . . .”

Sohn, 371 So. 2d at 1094. See also Smith v. Parker, 508 So. 2d 1262, 1263

(Fla. 5th DCA 1987) (“That agreement terminated when he withdrew and

Smith, absent some further agreement or modification, had no further duty

                                       14
or obligation to Beshara. The contract was at an end.”). While she remained

jointly responsible for actions before discharge, Frexes was not jointly liable

for any action after discharge.

      Conversely, terminating the relationship is straightforward: a client

simply needs to provide notice that he or she is discharging the attorney’s

services. It is best practice to do so in writing. No magic words are required.

It can be as simple as, “You are fired.”7

      On January 28, 2019, Virgin emailed Frexes expressing the desire to

terminate the relationship. They exchanged several emails. Virgin told

Frexes that Olin was replacing her. On our review of the record, we find that

these emails were sufficient to discharge Frexes’ employ. Nothing further

was necessary. As of this date, Frexes was no longer Virgin’s counsel.

      If she questioned or doubted the discharge, Frexes should have sought

clarification of the relationship—rather than doubling down on her referral

fee. As the lawyer, that burden fell on her. See R. Regulating Fla. Bar 4-

1.3, Comment (“Doubt about whether a client-lawyer relationship still exists



7
  A lawyer may still need to comply with Rule 4-1.16. See R. Regulating Fla.
Bar 4-1.16(c) (“A lawyer must comply with applicable law requiring notice or
permission of a tribunal when terminating a representation. When ordered
to do so by a tribunal, a lawyer shall continue representation notwithstanding
good cause for terminating the representation.”).

                                      15
should be clarified by the lawyer, preferably in writing . . . .”). This includes

getting an express release of any joint liability.

                                       IV.

      Even though there is a right to discharge a referral attorney, this right

is subject to liability for payment for the attorney’s services.        See R.

Regulating Fla. Bar 4-1.5(i) (“If you discharge your lawyer without good

cause after the 3-day period, you may have to pay a fee for work the lawyer

has done.”); R. Regulating Fla. Bar 4-1.16, Comment (“A client has a right to

discharge a lawyer at any time, with or without cause, subject to liability for

payment for the lawyer’s services.”); R. Regulating Fla. Bar 4-5.8, Comment

(“While clients have the right to choose counsel, that choice may implicate

obligations such as a requirement to pay for legal services previously

rendered and costs expended in connection with the representation as well

as a reasonable fee for copying the client’s file.”). We must determine the

proper basis for that compensation here.

      The trial court awarded Frexes the contractual fee of 25% of the total

fee recovery—$144,000.00.        In doing so, the trial court reasoned that

quantum meruit only applies where the lawyer has been suspended or

disbarred during representation and cannot fulfill his or her contractual




                                       16
obligations. It further ruled that Virgin’s actions created an impossibility for

Frexes to fulfill her duties, entitling her to the contractual fee.

      Alternatively, the trial court awarded quantum meruit in the same

amount. This included time from the date of the airplane crash until the

occurrence of the last contingency—well-after discharge. In its analysis, it

focused mainly on the representation agreement.

      We find both determinations legally erroneous for several reasons.

                             A.    Contractual Fee

      Florida distinguishes between the client discharging the lawyer and the

lawyer discharging the client without cause before the contingency occurs.

In the former situation, Florida adopted a modified quantum meruit rule.

Rosenberg, 409 So. 2d at 1021. When an attorney is discharged without

cause, he or she is entitled to recover reasonable value for services

performed before discharge. Id. This quantum meruit is limited to the

“maximum contract fee.” Id. “This limitation is believed necessary to provide

client freedom to substitute attorneys without economic penalty. Without

such a limitation, a client’s right to discharge an attorney may be illusory and

the client may in effect be penalized for exercising a right.” Id. at 1020. This

“approach creates the best balance between the desirable right of the client




                                        17
to discharge his attorney and the right of an attorney to reasonable

compensation for his services.” Id. at 1022.

      In the latter situation, the attorney forfeits any fee whatsoever. Faro v.

Romani, 641 So. 2d 69, 71 (Fla. 1994). A limited exception exists where

there is justifiable cause for withdrawal based on a finding that the client's

conduct either rendered the attorney’s performance legally impossible, or

would result in the attorney violating an ethical rule. Id. See also Mineo

Salcedo L. Firm, P.A. v. Cesard, 333 So. 3d 222, 228 (Fla. 4th DCA 2022)

(“When an attorney voluntarily withdraws from representation of a client

before the contingency occurs, the attorney forfeits all rights to compensation

unless the client’s conduct makes the attorney’s continued performance

either legally impossible or would cause the attorney to violate an ethical

rule, in which case the attorney may be entitled to a fee when the

contingency occurs.”).

      In awarding Frexes the contractual fee of 25% of fee recovery, the trial

court ruled that Virgin’s conduct created an impossibility for Frexes to

perform under the contract and the limited exception applied. But this ruling

lacks legal and factual support. Indeed, Virgin discharged Frexes—not the

other way around. The limited exception only applies in situations where the

attorney withdraws from representation. Faro, 641 So. 2d at 71. Plus,

                                      18
Virgin’s action at issue is her discharge of Frexes—which she had an

absolute right to do. Thus, the limited exception does not apply.

      Because Virgin discharged Frexes and the limited exception does not

apply, Frexes was only entitled to modified quantum meruit. She was not

entitled to the contractual fee. See Barwick, Dillian & Lambert, P.A., 646 So.

2d at 778 (holding discharged referral attorney cannot recover the

contractual fee, and is only entitled to quantum meruit).

                      B.     Modified Quantum Meruit

      Turning to the quantum meruit analysis, the trial court alternatively

ruled that quantum meruit supports its award. But the trial court did not

meaningfully engage in the required analysis to determine that quantum

meruit.   It focused solely on the fee agreement. It disregarded the initial

settlement, Frexes’ discharge, that Frexes seeks to recover for work outside

the scope of the representation agreement, and that some of the time for

which she seeks compensation was spent pursuing her own recovery.

      As a result, the trial court erred as a matter of law by failing to consider

the totality of the circumstances. Searcy, Denney, Scarola, Barnhart &

Shipley, P.A. v. Poletz, 652 So. 2d 366, 369 (Fla. 1995). We reverse and

remand for the trial court to perform the modified quantum meruit analysis.

In its analysis, the trial court should consider the factors set forth by the

                                       19
Florida Supreme Court.       See Rosenberg, 409 So. 2d at 1022; Searcy,

Denney, Scarola, Barnhart & Shipley, P.A., 652 So. 2d at 369.                   Its

determination should not include any time incurred after Frexes’ discharge

on January 28, 2019, 8 and should not include any time incurred on matters

outside the scope of the representation agreement. Rosenberg, 409 So. 2d

at 1021.

                                        V.

      The trial court erred in its legal reasoning and conclusions of law. In

essence, its decision made Virgin’s right to terminate illusory and enacted a

penalty upon her for discharging Frexes’ services. Rosenberg, 409 So. 2d




8 Prohibiting recovery for time incurred after an attorney is discharged is
logical. Rosenberg, 409 So. 2d at 1021. Following notification of discharge,
the attorney’s interests conflict with that of a client. Brasch v. Brasch, 109
So. 2d 584, 587 (Fla. 3d DCA 1959). The relationship must cease. See R.
Regulating Fla. Bar 4-1.16(a)(3) (“[A] lawyer shall not represent a client or,
where representation has commenced, shall withdraw from the
representation of a client if . . . the lawyer is discharged . . . .”). A lawyer or
law firm generally cannot recover for reasonable services performed after a
conflict arises. See Fla. Ethics Op. 89-1 (explaining a lawyer who refers a
case because of a conflict cannot receive a referral fee as he cannot assume
joint responsibility); Fla. Ethics Op. 73-2 (explaining law firm that referred a
case due to conflict could only be paid reasonable value of services before
conflict arose). Any action taken thereafter is without lawful authority and
does not bind the client. Syna v. Lewen, 549 So. 2d 755, 756 (Fla. 3d DCA
1989); Brasch, 109 So. 2d at 587.

                                        20
at 1020. We reverse and remand for further proceedings consistent with this

opinion.

     Reversed and remanded for further proceedings.




                                    21