DAVID MERCER, INDIVIDUALLY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BLANCHE HEISCH AND AS TRUSTEE OF THE SIXTH AMENDED AND RESTATED DECLARATION OF TRUST OF BLANCHE HEISCH, AND WINTTER & ASSOCIATES, P.A., APPELLANTS,
v.
TERRY KANOWSKY, APPELLEE
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The court affirmed the probate court's order requiring disgorgement of extraordinary attorney's fees and expenses due to conflicts of interest and administrative failures, but reversed the portion compelling the law firm to perform future services without compensation for lack of due process.
A probate court may order disgorgement of extraordinary attorney's fees and expenses for conflicts of interest and administrative failures, but cannot compel a law firm not party to the proceedings to perform future services without compensation without due process.
[1] A law firm not made a party to probate proceedings cannot be compelled to perform future services without compensation without due process protections including notice an…
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Join FLexlaw to unlock all legal intelligence“the court's order compelling the law firm to perform additional services at no cost to the estate and trust denied the law firm due process, because the form was not a party to the proceedings below, this relief was not sought by the pleadings, and the law firm was not given notice or an opportunity to be heard on such relief.”
Explanation of why the portion requiring future unpaid services was reversed
David Mercer, as personal representative of Blanche Heisch's estate and trustee of her trust, incurred extraordinary attorney's fees through Wintter &…
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PER CURIAM.
In this appeal involving a final accounting in estate and trust proceedings, David Mercer, the personal representative of the estate and trustee of the trust of Blanche Heisch, and his attorneys, Wintter & Associates, P.A., contend that the probate court erred in denying payment for extraordinary attorney’s fees and other expenses incurred by the estate during administration. The fees were incurred primarily in determining title to real property devised by will to Mercer and were objected to by Terry Kanowsky, the residuary beneficiary of the trust. After hearing evidence regarding conflicts of interest and other failures in the administration of the estate, the probate court ordered appellants to disgorge the extraordinary attorney’s fees, real estate taxes, and expenses charged to the trust. We affirm on all points raised by appellants, except we reverse that portion of the court’s order requiring Wintter & Associates to perform future legal services for the estate and trust without compensation. The court’s order compelling the law firm to perform additional services at no cost to the estate and trust denied the law firm due process, because the form was not a party to the proceedings below, this relief was not sought by the pleadings, and the law firm was not given notice or an opportunity to be heard on such relief.
Affirmed in part, and Reversed in part.
WARNER, KLEIN and TAYLOR, JJ., concur.
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Wintter & Assocs., P.A. v. Kanowsky, 992 So. 2d 434 (Fla. 4th DCA 2008)…tee and the law firm attorney’s fees and costs incurred in pursuing her objection. The trustee and law firm appealed, and this court affirmed the denial of the extraordinary attorney’s fees, reversing only on an unrelated issue. Mercer v. Kanowsky, 917 So. 2d 222 (Fla. 4th DCA 2005). Upon remand, the beneficiary again moved for fees. Over objection and after many hearings, the court awarded fees against the trustee and the law firm in equal amounts. The law firm appeals the award against it. The law firm cl…
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Mercer v. Kanowsky, 15 So. 3d 814 (Fla. 4th DCA 2009)…of those fees. The trial court’s initial ruling, i.e., the propriety of the extraordinary fees incurred by the trustee, was appealed.1 Such ruling was affirmed, but the case was reversed and remanded on an unrelated issue. See Mercer v. Kanoiuslcy, 917 So. 2d 222 (Fla. 4th DCA 2005). On remand, the trust beneficiary continued to pursue her claim for attorney’s fees. The trial court awarded fees to the beneficiary, establishing the amount of attorney’s fees and ordering Mercer and the law firm to each bear h…