WILLIAM C. BISSMEYER AND DAVID A. STEVES, P.A., A FLORIDA PROFESSIONAL CORPORATION, APPELLANTS,
v.
SOUTHEAST BANK, N.A., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JEANNE P. BISSMEYER, DECEASED, ROGER J. BISSMEYER, INDIVIDUALLY AND AS GUARDIAN OF JAMES A. BISSMEYER, CLAIRE B. TIBERIO, AND CAROL B. GRAHAM, APPELLEES
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William C. Bissmeyer and David A. Steves, P.A. appealed a probate order denying Steves' motion for attorneys' fees incurred in a prior appeal defending a circuit court order that had awarded Steves fees for work benefiting the estate. The court affirmed, holding that Steves failed to demonstrate that its appellate defense effort involved services rendered to benefit the estate, and that any motion for appellate attorneys' fees must be brought in the circuit court, not the appellate court.
Steves is not entitled to appellate attorneys' fees because it failed to demonstrate that its effort to uphold the judgment awarding it fees involved services rendered to benefit the estate. Additionally, any motion for attorneys' fees under Florida Statute § 733.106(3) must be brought in the circuit court and is not cognizable by the appellate court.
[1] An attorney seeking fees for services benefiting an estate must demonstrate that the services rendered were for the benefit of the estate.
[2] A motion for appellate attorney's fees must be filed with the appellate court before seeking fees in the trial court.
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Join FLexlaw to unlock all legal intelligence“Steves has not demonstrated that any effort by it to uphold the judgment awarding it fees from the estate involved services rendered to benefit the estate.”
Establishes the core holding that Steves cannot recover appellate fees because defending its own fee award does not constitute services to benefit the estate.
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Join FLexlaw to unlock all legal intelligenceSteves obtained a circuit court order awarding it attorneys' fees for legal work benefiting the Jeanne P. Bissmeyer estate in a probate proceeding. Bi…
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ALTENBERND, Judge.
William C. Bissmeyer, a beneficiary of the estate of Jeanne P. Bissmeyer, and David A. Steves, P.A. (Steves), appeal a probate order denying Steves’ motion for attorneys’ fees. These fees were requested by Steves for its successful appellate defense of a circuit court order awarding attorneys’ fees directly to Steves for legal work benefiting the estate in the probate proceeding. In the earlier appeal, this court affirmed because the record provided by the appellant was insufficient to determine the merits of the appeal. Southeast Bank, N.A. v. David, A. Steves, P.A., 552 So. 2d 292 (Fla. 2d DCA 1989). We affirm this appeal because Steves has not demonstrated that any effort by it to uphold the judgment awarding it fees from the estate involved services rendered to benefit the estate. § 733.106(2), Fla.Stat. (1989); In re Estate of Gaspelin, 542 So. 2d 1023 (Fla. 2d DCA), review denied, 547 So. 2d 1209 (Fla.1989); In re Estate of Udell, 501 So. 2d 1286 (Fla. 4th DCA 1986).
Steves did not file a motion for attorneys’ fees with this court in the prior appeal under Florida Rule of Appellate Procedure 9.400(b). The circuit court was concerned that our interpretation of the prior appellate rule, Florida Appellate Rule 3.16(e), might still require an attorney providing a benefit to an estate to move for appellate fees in this court before requesting fees in the probate court. See In re Estate of Potts, 199 So. 2d 319 (Fla. 2d DCA 1967). The reasoning in Potts was rejected in Garvey v. Garvey, 219 So. 2d 685 (Fla.1969), and was also affected by the change in appellate rules. To avoid confusion, we announce that this court follows the guidelines described in In re Estate of Udell, 501 So. 2d 1286 (Fla. 4th DCA 1986). See also, Cari v. Erickson, 394 So. 2d 1022 (Fla. 4th DCA 1981).
The order awarding fees was not paid by the estate pending the first appeal. When that appeal was concluded, the circuit court refused to add interest to that award, finding that the payment was not arbitrarily withheld. The record before this court does not establish that the trial court abused its discretion in that regard. See In re Estate of Lung a v. Koppen, 360 So. 2d 109 (Fla. 3d DCA), cert. denied, 366 So. 2d 883 (Fla.1978).
Finally, Mr. Bissmeyer and Steves have petitioned this court for attorneys’ fees for services rendered in this appeal pursuant to section 733.106(3), Florida Statutes (1989). Such a motion is not cognizable by this court and rests within the exclusive province of the circuit court. In re Udell. Accordingly, we decline to consider their motion.
Affirmed.
SCHEB, A.C.J., and THREADGILL, J., concur.
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Rados v. Rados, 791 So. 2d 1130 (Fla. 2d DCA 2001)…lain the ruling is entitled to consider all issues presented by the motion. STRINGER, J., and LENDERMAN, JOHN C., Associate Judge, concur. . There is a small exception to this rule in probate proceedings. Bissmeyer v. Southeast [*1132] Bank, N.A., 596 So. 2d 678 (Fla. 2d DCA 1991). . The most common example of this situation is a case in which an insured on remand must establish a right to insurance benefits. § 627.428, Fla.Stat. (2000). . See also § 742.031(1), Fla.Stat. (1999) (permitting court to requi…
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Bartow HMA, LLC v. Kirkland, 146 So. 3d 1213 (Fla. 2d DCA 2014)…e. We likewise conclude that the limited exception for probate proceedings described in Kirkland’s answer brief is inapplicable to this case. See In re Estate of Udell, 501 So. 2d 1286 (Fla. 4th DCA 1986); see also Bissmeyer v. Southeast Bank, N.A., 596 So. 2d 678, 679 (Fla. 2d DCA 1991) (declining to consider motion for attorney’s fees for services rendered in appeal of probate matter because such motion rests within the exclusive province of the circuit court). II. Whether the $2,509 awarded to Kirkland fo…
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Donnabelle Zepeda and Jo Ann Rivera v. Klein, 698 So. 2d 329 (Fla. 4th DCA 1997)…n securing the fee resulted in “a substantial benefit” for the client and the award was consistent with statutory language-and purpose. See Crittenden Orange Blossom, Fruit v. Stone, 514 So. 2d 351, 353 (Fla.1987); Bissmeyer v. Southeast Bank, N.A., 596 So. 2d 678, 679 (Fla. 2d DCA 1991), review denied, 599 So. 2d 654 (Fla.1992); Diaz v. SantaFe Healthcare, Inc., 642 So. 2d 765 (Fla. 1st DCA 1994); Department of Transp. v. Winter Park Golf Club, 687 So. 2d 970 (Fla. 5th DCA 1997). For example, in Palma, the…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Se. Bank, N.A. v. David A. Steves, P.A., 552 So. 2d 292 (Fla. 2d DCA 1989)
- Rogers v. State, 219 So. 2d 685 (Fla. 1969)
- Jones v. State, 501 So. 2d 1286 (Fla. 4th DCA 1986)
- In re The Est. OF Daniel A. Udell, 501 So. 2d 1286 (Fla. 4th DCA 1986)
- In re Est. of Ira D. Potts, 199 So. 2d 319 (Fla. 2d DCA 1967)
- In re Est. of Alek G. Lunga v. Koppen, 360 So. 2d 109 (Fla. 3d DCA 1978)
- Marks v. Novak, 199 So. 2d 319 (Fla. 3d DCA 1967)
- In re Est. OF Joseph Francis Gaspelin v. Gaspelin, 542 So. 2d 1023 (Fla. 2d DCA 1989)
- Rodriguez v. State, 394 So. 2d 1022 (Fla. 3d DCA 1980)
- Cari v. Erickson, 394 So. 2d 1022 (Fla. 4th DCA 1981)