KHOURY v. ESTATE OF KASHEY

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Docket Number

No. 88-692.

Attorney(S)

Helman Young and Nard S. Helman, Coral Gables, for appellants. Hendricks Hendricks and Robert A. Hendricks, Coral Gables, for appellee.

Judges

JORGENSON, Judge.

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Smart Summary

Factual and Procedural Background

The appellants, who were contestants of the will of Rose Kashey, petitioned to revoke the probate of her will alleging undue influence and lack of testamentary capacity. The trial court found that the contestants had no evidence to support these allegations and granted an involuntary dismissal. Subsequently, the court entered a final judgment granting the personal representative's petition to tax costs and attorney's fees pursuant to section 57.105, Florida Statutes (1985). The contestants moved to set aside this final judgment under Florida Rule of Civil Procedure 1.540, but the trial court denied their motion. This appeal followed.

Legal Issues Presented

Whether the trial court erred in granting an involuntary dismissal due to lack of evidence supporting allegations of undue influence or lack of testamentary capacity.
Whether the trial court properly granted the personal representative's petition to tax costs and attorney's fees under section 57.105, Florida Statutes (1985).
Whether the contestants' motion to set aside the final judgment taxing costs and attorney's fees under Florida Rule of Civil Procedure 1.540 was properly denied.
What are the ethical considerations and conflicts of interest implicated by section 57.105 in probate proceedings where attorney's fees are taxed against the losing party and their attorney.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Herrick v. Southeast Bank, N.A., 512 So.2d 1029, 1030 (Fla. 3d DCA 1987)	Clarification that failure of attorney to advise clients of a conflict of interest is not a "mistake" under Rule 1.540 and that disputes between clients and attorneys are not litigated in probate court.	Used to support denial of the motion to set aside the final judgment taxing costs and fees.
Bashure v. Estate of Paulk, 498 So.2d 525 (Fla. 1st DCA 1986)	Application of section 57.105 to probate proceedings.	Referenced to demonstrate precedent for applying section 57.105 in probate contexts.
Anderson v. Anderson, 468 So.2d 528 (Fla. 3d DCA), rev. denied, 476 So.2d 672 (Fla. 1985)	Application of section 57.105 to probate proceedings.	Referenced as precedent for taxing attorney's fees in probate cases under section 57.105.
Goldworn v. Estate of Day, 452 So.2d 659 (Fla. 3d DCA 1984)	Application of section 57.105 to probate proceedings.	Used to support the court's application of the statute in this probate matter.
Ferguson v. Estate of Ferguson, 410 So.2d 617 (Fla. 4th DCA 1982)	Application of section 57.105 to probate proceedings.	Referenced for the same purpose as above.
Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA), rev. denied, 392 So.2d 1373 (Fla. 1980)	Application of section 57.105 to probate proceedings.	Supports the court’s recognition of the statute’s applicability in probate cases.
The Florida Bar v. Ward, 472 So.2d 1159, 1162 (Fla. 1985)	Ethical considerations regarding attorney-client conflicts and continued representation despite conflicts.	Used to emphasize the duty of attorneys to disclose conflicts and obtain client consent under Florida Bar Rule 4-1.7(b).

Court's Reasoning and Analysis

The court found that the will contestants presented no evidence to support their claims of undue influence or lack of testamentary capacity, justifying the trial court's involuntary dismissal. The court further upheld the taxation of costs and attorney's fees under section 57.105, which mandates awarding reasonable attorney's fees to the prevailing party when there is a complete absence of a justiciable issue. The contestants' subsequent motion to set aside the judgment was properly denied because the alleged failure of the attorney to advise clients of a conflict of interest does not constitute a "mistake" under Rule 1.540, and such disputes are not to be litigated in probate court.

The court highlighted a fundamental conflict of interest inherent in section 57.105 proceedings: the losing party and the losing party's attorney have divergent interests since the attorney is personally liable for half the attorney’s fees only if they fail to act in good faith. To address this conflict, attorneys must adhere strictly to Florida Bar Rule of Professional Conduct 4-1.7(b), which prohibits representation if independent professional judgment may be materially limited without reasonable belief of no adverse effect and client consent. The court stressed the attorney's duty to disclose the conflict and obtain documented client consent for continued representation, citing The Florida Bar v. Ward for support.

Holding and Implications

The order under review is affirmed.

The court's decision directly upholds the involuntary dismissal of the will contest for lack of evidence and the imposition of attorney's fees and costs against the losing party and their attorney under section 57.105. The denial of the motion to set aside the judgment is also affirmed. The opinion does not establish new legal precedent but serves as a reminder to the legal community of the ethical obligations and conflict of interest considerations attorneys must observe in section 57.105 proceedings, particularly in probate litigation.

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GEORGE H. KHOURY, LAWRENCE KHOURY, GEORGETTE KING, AND ELEANOR SEDAR, APPELLANTS, v. ESTATE OF ROSE K. KASHEY, APPELLEE.

JORGENSON, Judge.

Upon a finding that the will contestants who petitioned to revoke the probate of Rose Kashey's will had utterly no evidence to support their allegations of undue influence or lack of testamentary capacity, the trial court granted an involuntary dismissal. The trial court thereafter entered an order on final judgment granting the personal representative's petition to tax costs and attorney's fees pursuant to section 57.105, Florida Statutes (1985). The contestants' motion to set aside the final judgment taxing costs and attorney's fees sought relief under Florida Rule of Civil Procedure 1.540. The trial court properly denied the motion. The failure of an attorney to advise his clients of a conflict of interest is not the sort of "mistake" contemplated by the rule, nor is the dispute between these clients and their attorney a subject to be litigated in the probate division of the circuit court. See Herrick v. Southeast Bank, N.A., 512 So.2d 1029, 1030 n. 3 (Fla. 3d DCA 1987). We therefore affirm the order under review and write further only to draw the attention of the bar to a fundamental conflict of interest inherent in the terms of section 57.105. The statute provides as follows:

Florida courts have previously applied section 57.105 to probate proceedings. See Bashure v. Estate of Paulk, 498 So.2d 525 (Fla. 1st DCA 1986); Anderson v. Anderson, 468 So.2d 528 (Fla. 3d DCA), rev. denied, 476 So.2d 672 (Fla. 1985); Goldworn v. Estate of Day, 452 So.2d 659 (Fla. 3d DCA 1984); Ferguson v. Estate of Ferguson, 410 So.2d 617 (Fla. 4th DCA 1982); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA), rev. denied, 392 So.2d 1373 (Fla. 1980).

Attorney's fee. — The court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party; provided, however, that the losing party's attorney is not personally responsible if he has acted in good faith, based on the representations of his client.

The interests of the losing party and his attorney necessarily diverge in a section 57.105 proceeding. This is so because, having made a proper showing of good faith, the losing party's attorney is relieved of personal responsibility for an "equal share" of the prevailing party's attorney's fee.

In order to resolve the conflict in a way that will permit further representation, the losing party's attorney must give strict attention to Florida Bar Rule of Professional Conduct 4-1.7(b). The rule provides as follows:

A lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest, unless:

(1) The lawyer reasonably believes the representation will not be adversely affected; and

(2) The client consents after consultation.

As the supreme court noted in The Florida Bar v. Ward, 472 So.2d 1159, 1162 (Fla. 1985), attorney and client are not infrequently "sued on matters growing out of the representation and, despite the fundamental conflict of interest inherent in such a case, the client insists that the attorney continue in representation as long as possible." The attorney in such circumstances must consider whether the conflict "will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client." Rules of Professional Conduct Rule 4-1.7 comment.

It is therefore incumbent upon the attorney facing a 57.105 proceeding to apprise the client of the conflict and consequences of continued representation once the attorney has formed a reasonable belief that such representation will not be adversely affected. The attorney should document not only the disclosure, but also the client's endorsement of the disclosure and the continuing representation. Ward, 472 So.2d at 1162.

The order under review is affirmed.