MANUEL DOURADO, APPELLANT/CROSS-APPELLEE,
v.
MARIA D. CHOUSA, ETC., ET AL., APPELLEES/CROSS-APPELLANTS
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In this estate dispute, Manuel Dourado appeals a trial court judgment determining that certain inter vivos transfers from his parents were loans rather than gifts, thereby reducing his share of his mother's estate. His siblings cross-appeal, contesting the characterization of other transfers as gifts. The appellate court affirms the trial court's factual findings but reverses the trial court's contemplated deficiency judgment against Manuel for attorney's fees.
The trial court's factual findings regarding the characterization of transfers as loans or gifts are affirmed and will not be disturbed on appeal. However, the court reverses the trial court's authority to enter a deficiency judgment against Manuel personally for attorney's fees beyond his estate share, as Florida Statutes section 733.106 does not contemplate such personal liability.
[1] An appellate court will not disturb a trial court's findings of fact when the appeal challenges the weighing of evidence and testimony.
[2] A court may reserve jurisdiction to award attorney's fees to an estate.
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Join FLexlaw to unlock all legal intelligence“We will not disturb the findings of fact included in the amended final judgment. It is not the function of an appellate court to weigh conflicts of evidence and testimony.”
Establishes the standard of review for factual findings on appeal and the deference owed to the trial court's determinations.
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Join FLexlaw to unlock all legal intelligenceManuel Dourado received inter vivos transfers from his parents that the trial court characterized as loans rather than gifts. Upon his mother's death,…
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PETERSON, Judge.
Manuel Dourado appeals portions of the trial court’s 31-page amended final judgment which sets forth findings of fact and conclusions of law. The court determined that certain inter vivos transfers to Manuel from his mother and father were not gifts, but loans, and that, upon the death of his mother (the father predeceased the mother), Manuel’s denial of the existence of the loans deprived the mother’s estate of assets. Under the mother’s will, the estate assets were to be shared equally by Manuel, his sister, Maria D. Chousa, and his brother, Frank Dourado, personal representative of their mother’s estate. Maria and Frank, and Frank as personal representative, cross-appeal portions of the amended final judgment that found certain inter vivos transfers from their parents to Manuel to be gifts. The final judgment concluded four years of litigation involving the siblings. The factual findings of the trial court included detailed tracing of funds into purchases and sales of noncash assets. In arriving at the findings of fact, the trial court remarked that much of the testimony of one witness had to be rejected as unworthy of belief.
We will not disturb the findings of fact included in the amended final judgment. It is not the function of an appellate court to weigh conflicts of evidence and testimony. Cripe v. Atlantic First Nat’l Bank of Daytona Beach, 422 So. 2d 820, 821 (Fla.1982); Schmeck v. Sea Oats Condominium Ass’n, Inc., 441 So. 2d 1092 (Fla. 5th DCA 1983).
The trial judge reserved jurisdiction to award attorney’s fees to the mother’s estate and against Manuel. The court also reserved jurisdiction to consider and determine an award of a deficiency judgment against Manuel in the event that the amount of attorney’s fees awarded exceeded the value of Manuel’s share of the estate, plus the value of certain of his property upon which constructive and resulting trusts were imposed. While the respective values and amounts have yet to be determined by the court, we consider it appropriate now to comment upon the entry of a deficiency judgment against Manuel based upon an award of attorney’s fees to the estate. The amended final judgment is silent upon the authority for an award of attorney’s fees to the estate, but we presume it is pursuant to section 733.106, Florida Statutes (1989). This is the basis for the fees alleged in the personal representative’s complaint. Section 733.106(3) allows any attorney who has rendered services to an estate to apply for an award of fees. If the court awards fees, the court may also direct the part of the estate that will bear the impact. Subsection 733.106(4). Subsections 733.106(3) and 733.106(4) do not contemplate imposition of personal liability for the fees in the event a beneficiary’s share is not sufficient to satisfy the full amount of the fees awarded. Dayton v. Conger, 448 So. 2d 609 (Fla. 3d DCA 1984).
The amended final judgment is affirmed except to the extent that it contemplates the payment of attorney’s fees from such of Manual’s personal assets that do not constitute a portion of the assets of his mother’s estate. This action is remanded for further proceedings for which the trial court reserved jurisdiction.
AFFIRMED in part; REMANDED.
COBB and HARRIS, JJ., concur.
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Lonergan v. Est. OF Ethel L. Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996)…witnesses. It is not the function of an appellate court to substitute its judgment for that of the trial court unless there is a lack of competent substantial evidence to support the findings upon which a final judgment is based. Dourado v. Chousa, 604 So. 2d 864 (Fla. 5th DCA 1992); Clegg v. Chipola Aviation, Inc., 458 So. 2d 1186 (Fla. 1st DCA 1984); Hernandez v. Leiva, 391 So. 2d 292 (Fla. 3d DCA 1980). In Florida, when a will known to have existed prior to the testator’s death is lost, and its loss cann…
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Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA 1999)…attorney’s fees under this statute, it may direct from which portion of the Estate they will be paid. As discussed above, the trial court may not award attorney’s fees which exceed Frances’ share as a beneficiary of the trust. See Dourado v. Chousa, 604 So. 2d 864, 865 (Fla. 5th DCA 1992); Dayton, 448 So. 2d at 611. Affirmed in part; reversed and remanded for the trial court to reconsider Bell’s motion for attorney’s fees. CAMPBELL, A.C.J., and CASANUEVA, JJ„ Concur. . That section provides: "The party rec…
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Brindle v. Brindle, 994 So. 2d 1174 (Fla. 3d DCA 2008)…diction.”). Thus, absent consent or statutory authority, a probate court may not apportion the expenses of an estate among the beneficiaries of an estate personally. See Dayton v. Conger, 448 So. 2d 609, 611-12 (Fla. 3d DCA 1984); Dourado v. Chousa, 604 So. 2d 864, 865 (Fla. 5th DCA 1992); cf. § 733.106(3)-(4), Fla. Stat. (2006) (allowing, in proper circumstances, attorneys fees and costs to be awarded from interests in an estate). There is no agreement or statute applicable to this case by which a personal a…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cripe v. Atl. First Nat'l Bank OF Daytona Beach, 422 So. 2d 820 (Fla. 1982)
- Canty v. State, 448 So. 2d 609 (Fla. 3d DCA 1984)
- Schmeck v. The SEA Oats Condo. Ass'n, Inc., 441 So. 2d 1092 (Fla. 5th DCA 1983)