Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

By Juan C. Antúnez of Stokes McMillan Antúnez P.A.

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Category Archives: Compensation Disputes

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M.D.Fla.: Can you be found guilty of “defalcation” for billing a client in accordance with Florida’s statutory fee schedule?

Posted in Compensation Disputes, Ethics & Malpractice Claims
West v. Chrisman, Slip Copy, 2014 WL 4683182 (M.D.Fla. September 19, 2014) If there’s anyone out there that still believes F.S. 733.6171 (the probate code’s attorney’s fee statute) or its trust-code equivalent (F.S. 736.1007) establishes a fee that’s “set” or otherwise blessed by Florida law, this case is going to be a rude awakening. Not only did … Continue Reading

Probate judge to personal representatives: “there is a higher power that [you're] accountable to and, short of God, that’s me.” 4th DCA says not so fast.

Posted in Compensation Disputes, Creditors' Claims, Practice & Procedure
Vazza v. Estate of Vazza, — So.3d —-, 2014 WL 4082864 (Fla. 4th DCA August 20, 2014) On average Broward County’s probate judges each took on 2,848 new cases in FY 2012-13 (see here). The unavoidable consequence of that kind of case load is what’s been referred to as the “cold judge” factor; a term coined … Continue Reading

4th DCA: Does Rule 1.525′s 30-day deadline apply in adversary probate proceedings?

Posted in Compensation Disputes, Practice & Procedure
Stone v. Stone, — So.3d —-, 2014 WL 537547 (Fla. 4th DCA February 12, 2014) If, when and how Civ. Pro. Rule 1.525, the rule setting a 30-day post-judgment deadline for filing attorney’s fee motions in civil litigation, applies to contested probate, guardianship and trust proceedings, is an important question. The last thing any lawyer … Continue Reading

3d DCA: $1.2 million trustee fee dispute snowballs into across-the-board indictment of trustee’s tenure resulting in whopping $5.3 million adverse judgment

Posted in Compensation Disputes
McCormick v. Cox, — So.3d —-, 2013 WL 4081414 (Fla. 3d DCA August 14, 2013) This case was 12 years in the making. Starting with the settlor’s death in 2001, boiling over into a lawsuit in 2006 after the trustee paid himself a $1.2 million fee (which wasn’t disclosed to the trust’s beneficiaries until after … Continue Reading

2d DCA: Can a judge cut your attorney’s fees in a contested guardianship proceeding without explaining why?

Posted in Compensation Disputes
In re Guardianship of Ansley, 94 So.3d 711 (Fla. 2d DCA August 17, 2012) As I recently wrote here, a judge’s attorney’s fee order is automatically subject to reversal if it doesn’t contain detailed findings of fact explaining why and how the judge arrived at his or her final fee-award conclusions. Transparency in this context is not … Continue Reading

4th & 5th DCA: How to draft attorney’s fees and costs orders that won’t get reversed on appeal

Posted in Compensation Disputes
Bishop v. Estate of Rossi, — So.3d —- 2013 WL 132449 (Fla. 5th DCA January 11, 2013) In Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985), the Florida Supreme Court adopted the federal “Lodestar” method for determining the amount of reasonable attorney’s fees and costs in contested proceedings. However, our supreme court also … Continue Reading

4th DCA: Can filing a time-barred will contest get you (and your lawyer) sanctioned?

Posted in Compensation Disputes, Will and Trust Contests
Shuck v. Smalls, — So.3d —-, 2012 WL 6027820 (Fla. 4th DCA December 05, 2012) In civil litigation you usually have years to file your complaint: most statute of limitations periods fall within the 2-6 year range. Not surprisingly, most civil litigators assume the same rules apply to probate litigation. Big mistake! For example, under F.S. … Continue Reading

4th DCA: Are “discharge clauses” in contingency fee agreements for probate litigation ethics violations that are per se unenforceable?

Posted in Compensation Disputes
Guy Bennett Rubin, P.A. v. Guettler, — So.3d —-, 2011 WL 4577670 (Fla. 4th DCA Oct 05, 2011) The Florida Bar ethics rules governing contingent fee agreements are found in Rule 4-1.5(f). Other than in divorce and criminal-defense cases [Rule 4-1.5(f)(3)], contingent fees are acceptable in any form of litigation, including contested probate and trust … Continue Reading

4th DCA: When can a probate judge assess the winning side’s attorney’s fees against a litigant for bad faith, wrongdoing or frivolousness?

Posted in Compensation Disputes
Levin v. Levin, — So.3d —-, 2011 WL 3477032 (Fla. 4th DCA Aug 10, 2011) In both F.S. § 733.106(4) and F.S. § 733.6175(2), a probate judge is given the express statutory authority to determine from whose share of the estate attorneys fees incurred in wrongful, frivolous or bad faith litigation will be paid. This type of sanction against … Continue Reading

3d DCA: Attorney’s fee order without supporting detailed findings is per se wrong and subject to reversal

Posted in Compensation Disputes
Johnson v. Amritt, — So.3d —-, 2010 WL 4861745 (Fla. 3d DCA Dec 01, 2010) In contested trust and estate proceedings the fiduciary in charge of the estate (i.e., the trustee, personal representative or guardian) hires the lawyer, but the estate’s beneficiaries paythose fees (the fiduciary’s attorney’s fees are paid from the estate). Because the party paying … Continue Reading

1st DCA: Does Rule 1.525′s 30-day deadline for attorney’s fee motions apply to contested guardianship proceedings?

Posted in Compensation Disputes
Price v. Austin, — So.3d —-, 2010 WL 3120212 (Fla. 1st DCA Aug 10, 2010) Over the last few years probate lawyers have been scratching their heads wondering if, when and how Civ. Pro. Rule 1.525, the rule setting a 30-day post-judgment deadline for filing fee motions in civil litigation, applies to contested probate and … Continue Reading

“No fee for you!” Out-of-state lawyer forfeits million-dollar payday in trust litigation

Posted in Compensation Disputes
Morrison v. West, — So.3d —-, 2010 WL 532792 (Fla. 4th DCA Feb 17, 2010) The linked-to opinion above is the last gasp of bitter litigation swirling around the $100 million estate of Palm Beach socialite Pedro Morrison, who died in 2003 [click here, here].  This time around the issue was whether North Carolina sole practitioner … Continue Reading

4th DCA: How far can you cut attorney fees before it’s an abuse of discretion?

Posted in Compensation Disputes
Glantz and Glantz, P.A. v. Chinchilla, — So.3d —-, 2009 WL 1531644 (Fla. 4th DCA June 3, 2009) An appellate court won’t reverse a probate judge’s ruling cutting attorneys fees unless there’s been an "abuse of discretion." In other words, if reasonable minds could disagree on how the court should have ruled, then the appellate … Continue Reading

4th DCA: When can a probate judge shift the winning side’s attorney’s fees against one of the estate’s beneficiaries for wrongful conduct, bad faith, or frivolousness?

Posted in Compensation Disputes
Geary v. Butzel Long, P.C., — So.3d —-, 2009 WL 1606034 (Fla. 4th DCA Jun 10, 2009) In the commercial litigation context F.S. § 57.105 is a powerful tool for curbing abusive litigation tactics: if you engage in bad faith or frivolous litigation, not only will you eventually lose, you’ll also end up paying the other … Continue Reading

5th DCA: It’s official, probate litigators now have something new to worry about: the 30-day deadline applicable to motions for attorney-fees under Civ. Pro. Rule 1.525

Posted in Compensation Disputes
Hays v. Lawrence, — So.2d —-, 2009 WL 211048 (Fla. 5th DCA Jan 30, 2009) The probate bar has been mulling over the question of if, when and how Civ. Pro. Rule 1.525, the rule setting a 30-day post-judgment deadline for filing fee motions in civil litigation, applies to contested probate and trust proceedings.  This is an important issue; the last thing … Continue Reading

2d DCA: Does Civ Pro Rule 1.525 (Motions for Costs and Attorneys’ Fees) apply to trust proceedings?

Posted in Compensation Disputes
Donkersloot v. Donkersloot, — So.2d —-, 2008 WL 4647415 (Fla. 2d DCA Oct 22, 2008) Civil Procedure Rule 1.525 governs the mechanics of attorney’s fee motions in general commercial litigation.  Here’s what the rule says: Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days … Continue Reading

4th DCA: What’s it mean to have “rendered services to an estate” when seeking attorneys fees in probate litigation?

Posted in Compensation Disputes
Duncombe v. Adderly, — So.2d —-, 2008 WL 4489234 (Fla. 4th DCA Oct 08, 2008) If a beneficiary of an estate wants to get his attorney’s fees paid with assets of the estate, the statute he’ll have to hang his hat on is F.S. 733.106(3), which provides as follows: (3) Any attorney who has rendered … Continue Reading

New legislation: Payment of trustee attorneys’ fees when defending breach of duty claims; trustees have new affirmative notice obligations

Posted in Compensation Disputes
Payment of trustee attorneys’ fees when defending breach-of-duty claims has been a hot topic over the last few years due to appellate decisions out of the 3rd and 4th DCA’s that were decidedly non-trustee friendly [click here, here].  The Florida Bankers Association swung into action, proposing new legislation that would make it more difficult to cut off … Continue Reading

2d DCA: What probate lawyers should know about fee disputes under Florida’s Wrongful Death Act

Posted in Compensation Disputes
Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, — So.2d —-, 2008 WL 2668801 (Fla. 2d DCA Jul 09, 2008) Ever wonder why your friendly neighborhood plaintiff’s lawyer gets a bit tense when he hires you to get his client appointed personal representative . . . PRONTO! Easy, because under F.S. 768.20 only the PR has … Continue Reading

Contingent fees in probate litigation: $42 million payday upheld on appeal

Posted in Compensation Disputes
The Florida Bar ethics rules governing contingent fee agreements are found in Rule 4-1.5(f).  Other than in divorce and criminal-defense cases [Rule 4-1.5(f)(3)], contingent fees are acceptable in any form of litigation, including contested probate proceedings.  Another point to keep in mind is that the percentage ceilings applicable to personal injury and medical malpractice cases, … Continue Reading