Second DCA Reverses Trial Court’s Grant of $410,300 in Attorneys’ Fees

Martinez v. Ipox, __ So.2d __ (Fla. 2d DCA April 07, 2006)

Probate issues do not, as they say, “drive the train” in wrongful death cases. But, as a matter of Florida law, these cases may ONLY be litigated by personal representatives. Because wrongful death cases MUST be litigated within the context of a probate proceeding, getting the probate issues “wrong” can come back to bite litigation counsel in a very big way – as demonstrated by this case.

This case started out as a medical malpractice action and was then amended to a wrongful death action when the infant at the center of the litigation died. After a jury trial the parents of the deceased child, acting as co-personal representatives of the child’s estate, were awarded a judgement of $2.3 million. On a subsequent motion for attorneys’ fees based on a proposal for settlement signed only by the child’s mother . . . and only in her individual capacity, Hillsborough County Judge Sam D. Pendino awarded the child’s parents $410,300 in attorneys’ fees (about 18% of the total damages award).

On appeal the Second DCA reversed the trial court’s fee award based on what I am sure appeared to be the height of “form” over substance to plaintiffs’ counsel. If you take a minute to think about it, however, the Second DCA probably got this one right. Adopting the statutory analysis of a 2004 Third DCA opinion addressing a similar set of facts, Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102 (Fla. 3d DCA 2004), the Second DCA explained its ruling as follows:

We agree with the holding in Reid. . . . In a wrongful death case where there are joint personal representatives, the joint personal representatives are the party plaintiffs. As the party plaintiffs, only the joint personal representatives-acting in that capacity-are entitled to make a valid demand for judgment. The demand for judgment at issue here therefore was invalid. See §§ 2005->Ch0768->Section%2020#0768.20″>768.20, 2005->Ch0768->Section%2079#0768.79″>768.79, Fla. Stat. (2001); Reid, 888 So.2d at 103.

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Section 2005->Ch0733->Section%20615#0733.615″>733.615 provides that “multiple representatives must act in concert, and have no authority to act independently, regardless of the circumstances.” Messina v. Scionti, 406 So.2d 529, 532 (Fla. 2d DCA 1981). See also Costello v. Davis, 890 So.2d 1179 (Fla. 2d DCA 2004) (holding that one co-personal representative did not bind the other co-personal representative to a contingent fee agreement with counsel because the other co-personal representative did not join in the agreement); Pearce v. Foster, 454 So.2d 721 (Fla. 4th DCA 1984) (holding that a co-personal representative could not unilaterally file a notice of appeal without concurrence of the other co-personal representative). In addition, there was no evidence that Rebeca Ipox had been delegated to act on behalf of the other co-personal representative. See § 733.615(1) (providing that concurrence of all joint personal representatives is not required “when a joint personal representative has been delegated to act for the others”).

Because the proposal for settlement that served as the basis for the award of attorneys’ fees in this case was not served by both the Ipoxes as joint personal representatives, the trial court erred in relying on it. Therefore, we reverse the award of attorneys’ fees.