Blogs from May, 2012

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RECOVERY OF ATTORNEY’S FEES TIMING FOR APPEAL

AND CONSIDERATIONS BY FLORIDA WILL AND TRUST

DISPUTE LAWYERS

As a Florida Will and Trust dispute lawyer, situations are frequently encountered where a request has to be made to the court for payment of attorney’s fees.  These requests are made by the will dispute lawyer on behalf of a Will executor, executrix, and/or Trustee in order to secure payment of the will or trust dispute attorney’s fees from the estate or trust.   Sometimes a court will determine that the lawyer’s services have benefited the trust or estate, and sometimes the court will determine they have not.  Other times, a court will determine that the fees requested are not reasonable or not in conformity with community standards.  When a will and trust dispute lawyer receives a negative ruling on behalf of his or her client, an appeal is often the next legal maneuver.  However, the timing of the appeal can frequently be a difficult measurement.

             A recent case from the Fourth District Court of Appeal Kondle v. Bottner, 2012 Fla. App. Lexis 6885, 37 Fla.L.Wkly. D1085 (4th DCA 4D09-5249, May 2, 2012) reflects the challenges faced by a will and trust dispute lawyer in making a determination as to when the time is appropriate to challenge a trial court’s ruling on a determination of whether attorney’s fees should be paid from the estate or trust.  Kondle involved an action brought by a Florida trust dispute lawyer in connection with the trustee’s appeal of an order that required him to account for a reserve fund and expenses paid from that fund.  The trustee argued that the order disallowed the payment of attorney’s fees and other expenses incurred in the administration of the trust from the reserve before distribution of the remainder to the beneficiaries.

            After a settlement was reached and estate taxes were paid, the trustee paid attorney’s fees from the reserve where the beneficiaries sought an accounting from the court.  The trustee argued that the trial court incorrectly interpreted the settlement agreement and prevented the payment of lawful expenses (i.e., attorney’s fees) incurred from the general administration of the trust.  The 4th DCA disagreed and found the appeal was premature “until such time as that decision is made [as to the number of attorney’s fees and whether the attorney’s fees incurred in the administration of the estate were entitled to be paid to the trustee], the judicial labor is not an end.  Further, an appeal from the trial court’s determination to award fees is likewise premature as no amount has been determined.”

            The District Court of Appeals said that “bottom line, we lack jurisdiction to consider the order at this time.”

If you need to consult with a Florida Will & Trust Dispute Lawyer, please call the Law Offices of Adrian Philip Thomas, P.A. toll-free at (954) 764-7273 for a free consultation.

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