IN RE ESTATE OF PARIS v. HARPER

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Docket Number

Case No. 97-01408

Attorney(S)

Clifford R. Rhoades, Sebring, for Appellant. Clifford M. Ables, III, Sebring, for Appellee.

Judges

PARKER, Chief Judge.

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Smart Summary

Factual and Procedural Background

In September 1994, Kathryn M. Harper filed a petition for administration of the estate of Marjorie Paris, offering for probate a will dated June 7, 1993 (the 1993 will). Carl E. Lindenmayer, acting as an interested person and later as personal representative, filed a caveat objecting to Harper's petition and challenged the validity of the 1993 will, alleging it was procured by overreaching, fraud, or undue influence. The trial court denied Harper's petition after finding she failed to rebut the presumption of undue influence. Subsequently, Lindenmayer filed a petition to probate an earlier will dated January 31, 1985 (the 1985 will), which was admitted to probate, and he was appointed personal representative.

Lindenmayer then filed a petition to tax litigation attorney's fees against Harper, seeking payment for fees incurred contesting the 1993 will. The trial court denied the petition, holding that the fees should not be charged as an expense of the estate because Lindenmayer had not pled entitlement to attorney's fees in the initial probate pleading, relying on the Florida Supreme Court's decision in Stockman v. Downs.

Legal Issues Presented

Whether a personal representative may petition to tax litigation attorney's fees against an interested party in a probate proceeding when the fees were incurred in contesting a will offered for probate.
Whether the requirements of Stockman v. Downs preclude awarding attorney's fees when entitlement was not pled in the initial probate pleading but a petition pursuant to section 733.106(3), Florida Statutes, is later filed.
The proper procedure and timing for awarding attorney's fees incurred in probate litigation under Florida law.

Arguments of the Parties

Appellant's Arguments

Lindenmayer argued he was entitled to petition for attorney's fees under section 733.106(3), Florida Statutes, because he rendered services benefiting the estate by preventing probate of an invalid will.
He contended that the fees should be taxed against Harper's share of the estate, as the fees were incurred due to her conduct in attempting to probate an "ill-gotten will."
Lindenmayer maintained compliance with statutory notice requirements for such a petition.

Appellee's Arguments

The opinion does not contain a detailed account of the appellee's arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Stockman v. Downs, 573 So.2d 835 (Fla. 1991)	Requirement that an interested party plead entitlement to attorney's fees in the initial probate pleading.	The trial court relied on Stockman to deny the petition, but the appellate court found this reliance misplaced because the petition under section 733.106(3) was timely and proper.
Carmen v. Gilbert, 615 So.2d 701 (Fla. 2d DCA 1992), rev'd on other grounds, 641 So.2d 1323 (Fla. 1994)	Permitting attorney's fees to be awarded pursuant to section 733.106(3) even if initial pleadings did not meet Stockman requirements.	The court relied on this case to support that attorney's fees can be petitioned during the pendency of the estate and that the petition provided timely notice to affected parties.

Court's Reasoning and Analysis

The court analyzed the interplay between the procedural requirements established by Stockman v. Downs and the statutory provisions of section 733.106(3), Florida Statutes. While Stockman requires that entitlement to attorney's fees be pled in the initial probate pleading, section 733.106(3) allows a personal representative or attorney to petition for fees at any time during the estate's pendency, provided proper notice is given.

The court found that Lindenmayer complied with the notice requirements and that his petition was timely under the statute. It further relied on the precedent from Carmen v. Gilbert, which upheld awarding fees under similar circumstances despite initial pleadings not meeting Stockman standards. The court concluded that the trial court erred in denying the petition solely on the basis of Stockman.

The court directed the trial court on remand to grant the petition and determine from which part of the estate the attorney's fees should be paid, recognizing that the fees were incurred due to Harper's attempt to probate a will found to be invalid.

Holding and Implications

The appellate court reversed the trial court's denial of the petition to tax litigation attorney's fees and remanded with instructions to grant the petition and determine the appropriate source of payment within the estate.

This decision clarifies that under Florida law, personal representatives may petition for attorney's fees during the estate's pendency pursuant to section 733.106(3), even if entitlement was not pled in the initial probate pleading, provided statutory notice requirements are met. The ruling directly affects the parties by requiring the estate to bear the litigation costs incurred in contesting an invalid will but does not establish new precedent beyond the application of existing statutory and case law.

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IN RE: ESTATE OF MARJORIE PARIS, A/K/A MARJORIE WHITE PARIS, CARL E. LINDENMAYER, SR., APPELLANT, v. KATHRYN M. HARPER, APPELLEE.

PARKER, Chief Judge.

Carl E. Lindenmayer, personal representative of the estate of Marjorie Paris, challenges the trial court's nonfinal order denying his petition to tax litigation attorney's fees against Kathryn M. Harper in this probate case. We reverse.

In September 1994, Ms. Harper filed a petition for administration in the estate. Harper offered for administration a will dated June 7, 1993 (1993 will). Ten days later, Lindenmayer filed a caveat by interested person in the estate objecting to the petition for administration that Harper filed. The caveat listed Clifford R. Rhoades, Esquire, as Lindenmayer's agent, stating that Rhoades was a member of the Florida Bar. Two days later, Harper gave Lindenmayer formal notice of petition for administration. In October 1994, Lindenmayer filed a response to petition for administration denying that the 1993 will was the Last Will and Testament of Marjorie Paris. He alleged that Harper procured the 1993 will by overreaching, fraud, or undue influence, or all of the above. Lindenmayer's response also stated that he intended to file a petition for administration of a will executed by Marjorie Paris on January 31, 1985 (1985 will), in which he was named the personal representative. Lindenmayer did not request attorney's fees from the estate in this response. After the hearing on the petition for administration filed by Harper, the trial court denied the petition because Harper could not rebut the presumption that she procured the 1993 will by her exercise of undue influence on Marjorie Paris.

Thereafter, Lindenmayer filed a petition for establishment and probate of lost or destroyed will and appointment of personal representative. Lindenmayer offered the 1985 will for administration. The 1985 will was admitted to probate, and the court appointed Lindenmayer as personal representative of the estate.

Lindenmayer then filed a petition to tax litigation attorney's fees against Harper. The petition asked for the payment of attorney's fees incurred in the contest of the petition for administration that Harper filed. The petition requested that the fees awarded be taxed against Harper's interest in the 1985 will first, and then pro-rata against the other beneficiaries' shares of the estate. The basis for the petition for attorney's fees was that the personal representative incurred legal fees in preventing the probate of the 1993 will and that those fees benefited the estate by allowing the 1985 will to be probated. The taxing of the fees against a certain beneficiary's share of the estate was based on the fees being incurred due to Harper's conduct in attempting to probate an "ill-gotten will." The circuit court did not reach the issue of the propriety of taxes for attorney's fees against Harper's share of the estate due to its finding that the attorney's fees incurred in contesting the probate of the 1993 will should not be an expense of the estate. The court relied on Stockman v. Downs, 573 So.2d 835 (Fla. 1991), in holding that an interested party to a probate proceeding must plead that party's entitlement to attorney's fees in the initial pleading filed in probate.

Lindenmayer argues that he is allowed, pursuant to section 733.106(3), Florida Statutes (1995), to apply for an order awarding fees when he has rendered services to the estate. We agree. Section 733.106(3) requires Lindenmayer to give informal notice to the personal representative and to all persons who would be impacted by the award. Lindenmayer complied with these requirements. Section 733.106(3) allows the attorney to apply for these fees at any time during the pendency of the estate.

In Carmen v. Gilbert, 615 So.2d 701 (Fla. 2d DCA 1992),rev'd on other grounds, 641 So.2d 1323 (Fla. 1994), this court upheld the award of attorney's fees in a similar case. While the attorney's initial attempts at establishing a right to fees did not meet the requirements of Stockman, this court found that the petition filed pursuant to section 733.106(3) did meet the requirements. Id. at 704. This court reasoned:

Because the fees sought were predicated on having provided a benefit to the estate, which could encompass more than merely having defended the petition to revoke probate, and section 733.106 permits an attorney to make such an application at any time during the pendency of the estate, we determine that the petition provided timely notice of the request for fees to all affected parties.

Id. The Florida Supreme Court reversed this case on other grounds, but specifically noted that the trial court awarded fees pursuant to section 733.106(3), and that the trial court should make a new determination of only from what part of the estate the attorney's fees should be paid. Carman v. Gilbert, 641 So.2d 1323, 1326 (Fla. 1994).

Accordingly, we conclude that the trial court erred in denying the petition to tax litigation attorney's fees against the estate. Upon remand, the trial court is directed to grant the petition and to determine from which part of the estate the fees should be paid.

Reversed and remanded.

DANAHY and BLUE, JJ., Concur.