Wintter & Associates, P.A. v. Kanowsky, — So.2d —-, 2008 WL 4643358 (Fla. 4th DCA Oct 22, 2008)

If all you’re asking a probate court to do is exercise its in rem jurisdiction over the assets of a trust by awarding you your attorney’s fees from trust assets, then you don’t have to plead this claim up front and can ask for these fees at any time by filing a motion under F.S. 736.1004.

On the other hand, if you’re asking a probate court to reach into someone’s pocket and make that person pay your fees with his own personal funds, that requires the court to exercise personal jurisdiction over the target of your claim, which triggers an entirely different pleading regime governed by the requirements of Stockman v. Downs, 573 So.2d 835 (Fla.1991). The different pleading requirements only make sense if you realize they rest on entirely different jurisdictional foundations: in rem v. in personam jurisdiction.

In the linked-to opinion the probate court ordered the trustee and its attorneys to personally pay for a trust beneficiary’s legal fees arising out of a contested trust accounting proceeding. Based on the following surprisingly frank observation by the 4th DCA in footnote 2 of its opinion, I’m guessing the probate court’s order wasn’t exactly the picture of clarity:

FN2. We admit that we do not know on what legal basis fees were awarded to the beneficiary and against the law firm and trustee, nor does anything in the record elucidate this for us.

That’s too bad, because I’m guessing the probate court entered its order on the assumption it was operating on the basis of its in rem jurisdiction over the trust’s assets, and thus the hightened pleading requirements applicable to personal judgments simply didn’t apply. Anyway, that’s the clear implication of the probate court’s order, and here’s how the 4th DCA explained its rationale for reversal:

The law firm claims that the trial court erred in awarding attorney’s fees where they were not pled as required by Stockman v. Downs, 573 So.2d 835 (Fla.1991), which held that a claim for attorneys fees, whether based on statute or contract, must be pled. Failure to do so constitutes a waiver of the claim. Id. at 837-38. The Stockman court based its decision on the need for appropriate notice and to prevent unfair surprise. Id. at 837. Further, the existence or non-existence of a motion for attorneys fees may play an important role in decisions whether to pursue a claim, dismiss it, or settle. Id. An exception to this rule applies [w]here a party has notice that an opponent claims entitlement to attorneys fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement,…. Id. at 838.

The exception to the Stockman rule does not apply, as neither the law firm nor the trustee waived its objection to the beneficiary’s failure to plead entitlement to attorney’s fees. The conduct of the law firm and trustee did not demonstrate acquiescence to the claim for fees. To the contrary, in the trustees own written closing argument the law firm objected to the request for attorneys fees on the grounds that it was not pled. At all times they objected to the assessment of attorneys fees.

Were these fees requested from the estate, Stockman might not apply. See In re Estate of Paris, 699 So.2d 301 (Fla. 2d DCA 1997). However, as noted, the beneficiary requested fees from the lawyer and trustee.

The beneficiary did not request attorney’s fees in her objection to the final accounting. Admittedly her objection was not a pleading in the traditional sense, as it was not a complaint or answer. However, it was the first document she filed with the court in this action, and she did not request attorney’s fees until her written closing argument. She requested fees not from the estate, but directly from the trustee and his attorney. Certainly, we think that the Stockman rationales of due process notice and prevention of surprise require her to reveal her intention to make such a claim.

In a companion case, Mercer v. Kanowsky, — So.3d —-, 2009 WL 2168810 (Fla. 4th DCA Jul 22, 2009), the 4th DCA came to the same conclusions with respect to the fee order assessed against the trustee personally, and reversed that order as well.