Mercy Hospital, Inc. v. Johnson , 390 So. 2d 103 ( 1980 )

390 So. 2d 103 (1980)

MERCY HOSPITAL, INC., Appellant,
v.
Wyatt JOHNSON, Appellee.

No. 80-138.

District Court of Appeal of Florida, Third District.

November 4, 1980. Rehearing Denied December 8, 1980.

Mershon, Sawyer, Johnston, Dunwody & Cole and Aubrey V. Kendall and Jeffrey R. Surlas, Miami, for appellant.

Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.

Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

We reverse the trial court's judgment in favor of Johnson, an attorney from whom Mercy Hospital, Inc., his client, sought to recover alleged overpayments of attorney's fees. We hold that where, as here, the attorney's fees received by Johnson were paid pursuant to purported agreements between him and Mercy entered into well after the attorney-client relationship had been established, it was Johnson's burden, which he failed to meet, to show the fairness of the purported agreements by clear and convincing proof. Halstead v. Florence Citrus Growers Association, 104 Fla. 21, 139 So. 132 (1932); In re Estate of Kindy v. Krongold and Bass, P.A., 310 So. 2d 349 (Fla. 3d DCA 1975); Reid v. Johnson, 106 So. 2d 624 (Fla. 3d DCA 1958).

We remand for a new trial with directions that Mercy Hospital, Inc. is entitled to recover the fees at issue paid to Johnson, less the amount of fees which Johnson establishes are due to him under a quantum meruit theory. See In re Estate of Kindy v. Krongold and Bass, P.A., supra.

Reversed and remanded with directions.