May 2005

Whitener v. First Union National Bank of Florida, 2005 WL 1047268 (Fla. 5th DCA May 6, 2005) (Trial Court Order Quashed) This case involves a single trust divided into two parts. The same trustee for both trusts was First Union National Bank of Florida (“First Union”). One beneficiary sued First Union in Duval County, which falls under the jurisdiction of the First DCA. In the course of the Duval-county litigation, the First DCA ruled that certain documents fell within the crime-fraud exception of the attorney-client privilege, and were thus discoverable. The second beneficiary sued First Union in Seminole County, which falls under the jurisdiction of the Fifth DCA. In the course of the Seminole-county litigation, the Fifth DCA ruled in the case cited at the top of this post that the same documents addressed by the First DCA were privileged, and thus due to their previous disclosure, counsel for the Seminole-county litigant was disqualified. Not to be so easily deterred, the Seminole-county litigant simply hired the lawyers involved in the Duval-county litigation and moved forward with her case . . . with the benefit of the “privileged” documents her previous attorneys were disqualified for obtaining.
Continue Reading When two trust beneficiaries sue the same bank-trustee in two different counties . . . then appeal to two different DCAs . . . then obtain conflicting rulings on the same issue . . . well, things get interesting

Dempsey v. Dempsey, 2005 WL 954856 (Fla. 2 DCA April 27, 2005) (Appeal Dismissed)

Under Florida Probate Rule 5.360, determining the elective share is a two step process. First, the trial court must rule on the issue of entitlement (Rule 5.360(c)). Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)).
Continue Reading Order Determining Entitlement to the Elective Share Is Not Appealable

Butler v. Guardianship of Peacock, 30 Fla. L. Weekly D889 (Fla. 5 DCA April 1, 2005) (Compensation Disputes) Marion County Circuit Court Judge Brian D. Lambert ruled that under F.S. § 2004->Ch0744->Section%20108#0744.108″>744.108(1) a petitioner seeking an order to determine the incapacity of her mother was entitled to an award of attorney’s fees and costs incurred in the guardianship proceedings up to the date the petitioner’s siblings objected to her being appointed guardian . . . fees and costs incurred thereafter were not for “services rendered on [the ward’s] behalf.”
Continue Reading Court Says No to Attorney’s Fees for Litigation over Whom Will Be Appointed Guardian

Baumann v. Estate of Blum, 30 Fla. L. Weekly D842 (Fla. 2 DCA March 30, 2005) (Trial Court Reversed) Getting paid fairly for the work you do is sometimes merely an “aspirational” goal for attorneys. It doesn’t have to be that way . . . especially when the law says you’re entitled to payment. In this case, the personal representative objected to the fees his own attorney petitioned for. Hillsborough County Circuit Court Judge Susan Sexton referred the matter to a general master and then simply adopted the general master’s report and recommendations wholesale without conducting a hearing. In the course of reversing the trial court, the Second DCA provides very valuable guidance for any attorney trying to make sure he or she gets paid for services rendered.
Continue Reading When the statute says the personal representative’s attorney “shall” be paid for services rendered, that’s what it means, and it’s reversible error for a court to rule otherwise

Estate of Mahaney v. Keefe, 2005 WL 924264 (Fla. 2 DCA April 22, 2005) (Trial Court Affirmed) It is not uncommon for a person’s single largest asset at death to be his homestead property. This is exactly what happened in the just decided Second DCA case, Estate of Mahaney v. Keefe (other than her home, decedent owned no other property of any value), and in the Fourth DCA case decided last year, Warburton v. McKean, 29 Fla. L. Weekly D1411 (June 9, 2004) (other than a condominium sold for $141,000, the decedent’s estate consisted of only nominal assets valued at $10,000). The question faced by both courts was whether freely-devisable homestead property could be used to satisfy pre-residuary bequests. The Fourth DCA said yes, the Second DCA said no. My understanding is that the Warburton case was heard by the Florida Supreme Court in early 2005, so we should have some resolution to this conflict in the near future. For the record, based on the basic principal that “freely devisable” homestead property should be controlled by a person’s will just like any other freely devisable asset, and the 1991 Florida Supreme Court ruling in City Nat’l Bank of Fla. v. Tescher, I think the Fourth DCA got it right in Warburton.
Continue Reading DCAs in conflict . . . can freely devisable homestead property be used to satisfy pre-residuary bequests? Fourth DCA says YES, Second DCA says NO, Florida Supreme Court ruling awaited