DIXON ALAN HAYS AND STEPHEN K. WIEDENBECK, APPELLANTS,
v.
F. PARKER LAWRENCE, STEPHEN L. LAWRENCE, ET AL, APPELLEES
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In a probate dispute over a handwritten will, the trial court denied appellants' claim for attorney's fees as untimely under Florida Rule of Civil Procedure 1.525. The Fifth District Court of Appeal affirmed, holding that because appellants had declared the proceeding adversary, the civil rules of procedure applied, requiring fees to be claimed within thirty days of the final order.
The petition for attorney's fees was untimely. Because appellants declared the probate proceeding adversary, the Florida Rules of Civil Procedure applied, including Rule 1.525's thirty-day requirement for fee motions. Filing the petition seven months after the final order violated this deadline.
[1] A petition for attorney's fees filed more than thirty days after a final order in an adversary probate proceeding is untimely under Florida Rule of Civil Procedure 1.525.
[2] In Florida probate proceedings, the Florida Rules of Civil Procedure apply when the dispute is declared an adversary proceeding.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“if the case is determined to be an adversary proceeding, it "shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults."”
Establishes the governing rule that civil procedure rules apply to adversary probate proceedings
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Join FLexlaw to unlock all legal intelligenceAppellants filed a petition for administration of an estate, claiming a handwritten document dated August 13, 1978, was the decedent's last will and r…
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In this probate proceeding, we review the propriety of the trial court’s order denying Appellants’ claim for recovery of attorney’s fees. The trial court determined that the motion was untimely pursuant to Florida Rule of Civil Procedure 1.525. We affirm.
*1177Appellants filed a petition for administration, claiming, in part, that a handwritten document dated August 13, 1978, was the last will of James Douglas Lawrence. Appellants’ petition requested that the court admit the handwritten document to probate and appoint them as personal representatives of Lawrence’s estate. On the same day, Appellants filed a declaration that the proceeding was adversary. After a trial was held on the petition in accordance with Florida Probate Rule 5.025, the court issued a final order denying Appellants’ petition for administration and refusing to admit the handwritten document to probate.. Appellants appealed the decision to this Court, which ultimately dismissed the appeal on March 1, 2007.
On March 29, 2007, Appellants’ attorneys filed a petition for order authorizing the payment of attorney’s fees and expenses pursuant to section 733.106(2), Florida Statutes (2007). Appellees moved to strike the petition, arguing, in part, that the petition for fees and costs was untimely because it was filed seven months after the final order was entered instead of within thirty days as required by rule 1.525. The trial court granted the motion to strike.
The central issue framed by the parties is whether the rules of civil procedure applied to the proceeding below. The resolution of this issue turns on whether the underlying dispute in probate court was an adversary proceeding. In a probate action, if the case is determined to be an adversary proceeding, it “shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults.” Fla. Prob. R. 5.025(d)(2). Notwithstanding Appellants’ prior declaration that the dispute was adversary, they urge that it was not. We disagree. See Fla. Prob. R. 5.025(b) (proceedings are adversary if declared as such).
Contrary to Appellant’s argument, In re Estate of Beeman, 391 So.2d 276 (Fla. 4th DCA 1980), is distinguished. There, our sister court addressed the issue of whether the rules of civil procedure applied in a probate proceeding to determine fees of counsel for the estate. In ruling that the civil rules did not apply, the Beeman court emphasized that the proceeding below had not been “designated” an adversary proceeding. We think this finding distinguishes Beeman from this case. Here, the proceeding was declared as an adversary proceeding to determine the validity of the purported will and tried as such. Under these circumstances, the rules of civil procedure, and specifically, rule 1.525 were applicable. Therefore, the motion was not timely.1
AFFIRMED.
PALMER, C.J. and EVANDER, J., concur.
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Price v. Austin, 43 So. 3d 789 (Fla. 1st DCA 2010)…e and the Florida Rules of Civil Procedure shall govern, including entry of defaults.” Florida Rule of Civil Procedure 1.525 requires a motion for attorney’s fees to be filed “no later than 30 days after filing the judgment....” In Hays v. Lawrence, 1 So. 3d 1176, 1177 (Fla. 5th DCA 2009), the court held that, in a proceeding declared as adversarial, rule 1.525 governed a motion for attorney’s fees filed pursuant to section 733.106(2) and affirmed a denial of a claim for attorney’s fees as untimely under the…
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Finnegan v. Noreen Compton, 154 So. 3d 370 (Fla. 4th DCA 2014)…t obtained a final judgment on January 5, 2011, over eight months before the September 28, 2011 effective date of the amendment to Probate Rule 5.025(d)(2). At the time the judgment was entered, Civil Rule 1.525 applied. See, e.g., Hays v. Lawrence, 1 So. 3d 1176, 1177 (Fla. 5th DCA 2009). Appellant did not move for attorney’s fees until September 7, 2012, long after the Rule 1.525 time limits had passed. It is the date of the final judgment that distinguishes this case from Stone v. Stone, where the final j…
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Kerkhoff v. THE Est. of Lynn Earl Brown (Fla. 2d DCA 2021)…8 (Fla. 4th DCA 1980), recognized the scope of application of probate rules and civil procedure rules: "The characterization of the proceedings is critically important for it determines which rules of court shall govern." See also Hays v. Lawrence, 1 So. 3d 1176, 1177 (Fla. 5th DCA 2009) ("The central issue framed by the parties is whether the rules of civil procedure applied to the proceeding below. The resolution of this issue turns on whether the underlying dispute in probate court was an adversary proc…
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- Allstate Ins. Co. v. Calero, 391 So. 2d 276 (Fla. 3d DCA 1980)
- In re Est. of George E. Beeman, 391 So. 2d 276 (Fla. 4th DCA 1980)