PATRICIA E. DIERICKX, AS GUARDIAN OF BLANCHE EMSWILLER, INCOMPETENT, APPELLANT,
v.
ROBERT F. WISEHART, APPELLEE
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The court held that an attorney's fee award was proper, either on an implied contract or quantum meruit basis, and that the Florida Rules of Civil Procedure applied to the proceeding.
An attorney represented buyers of real property owned by an incompetent ward. The ward's guardian appealed an order awarding attorney fees to the atto…
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Patricia E. Dieri.ckx, guardian of Blanche Emswiller, an incompetent, appeals from an order of the County Judge which required the guardian to pay Four Hundred Dollars to appellee, Robert F. Wisehart, as attorney’s fees. She asserts that the trial court erred in awarding attorney fees because of insufficient evidence that Wisehart was “employed” by the guardian, and for holding that the Florida Rules of Civil Procedure did not apply to this proceeding.
The ward owned real property in Indiana. Wisehart, an attorney in Indiana, represented purchasers to whom the land was sold. The guardian, as seller, was represented by a Miami attorney.
The County Judge made the following findings:
* * * * * *
“(1) From the evidence that was produced before the Court, it is very clear to the Court that Mr. Robert F. Wise-hart rendered services which benefited the estate of Blanche Emswiller, an incompetent, in that he, Mr. Robert F. Wisehart, performed services that are normally the duty of the seller of real property, particularly in connection with getting the matter approved by the Judge of the Court in Henry County, Indiana, which has jurisdiction of property of incompetents, and that he, Mr. Robert F. Wisehart, is entitled to compensation on a quantum meruit basis> regardless of any intent on the part of the Guardian or her attorney to employ him.
“(2) Furthermore, that it is evident to the Court, and it should have been evident' to the attorney for the Guardian, that services. were being performed, and that; *616he, the attorney for the Guardian, should have expected the attorney who performed the services to be compensated for them. The attorney for the Guardian states that he would have employed some other attorney, but the fact is that he did not, and he did not communicate with the other attorney in any manner in regard to getting this transaction approved by the Court or getting the title corrected.
“(3) Further, the Court finds that the charge of Four Hundred Dollars ($400.-00) for the services rendered is reasonable and should be paid, and that the Petition for allowance of attorney’s fees as filed by the Petitioner, ROBERT F. WISEHART, should be granted, and that the Guardian should pay to Mr. Robert F. Wisehart the sum of Four Hundred Dollars ($400.00) forthwith.”
* * * * * *
There appears to have been sufficient, competent evidence in the record for the trial court to have found that there was an implied contract of employment sufficient to uphold the award under Section 745.33, Florida Statutes, F.S.A. Even disregarding such a finding, the court properly based its fees on quantum meruit. Such an award is consistent with the holding of our Supreme Court in Lucom v. Atlantic National Bank of West Palm Beach1 where the rule of Brickell v. Di Pietro 2 was applied to an award of fees to the attorneys of a de facto guardian. In Brickell, it was said that “[a] court is without power to measure an attorney’s fee except on the basis of quantum meruit or a quid pro quo.”
The next question before us concerns the applicability of the Florida Rules of Civil Procedure in this cause. Prior to the entry of the final order, the County Judge denied certain motions of the guardian on the ground that the Florida Rules of Civil Procedure were not applicable in this proceeding. Rule A, of the Florida Rules of Civil Procedure, 30 F.S.A., provides:
“These rules are applicable to all suits of a civil nature and all specictl statutory proceedings in the Circuit Courts, County Judge’s Courts, County Courts and Civil Courts of Record, whether recognizable as cases at law or in equity with the exception that the form, content, procedure and time for pleading in all special statutory proceedings shall be as prescribed by the statutes providing for such proceedings, unless these rules shall specifically provide to the contrary. These rules shall be construed to secure the just, speedy and inexpensive determination of every action.” (Emphasis added)
The court of the County Judge has jurisdiction of this guardianship,3 and of the petition for attorney’s fees filed therein.4 Rule A, supra, clearly applies by its express terms to County Judge’s Courts.5 We have previously held that discovery proceedings were available to a petitioner in an adversary revocation of will contest filed and pending in a probate proceeding pursuant to a Florida Statute.6 Similarly, the Rules of Civil Procedure would apply in the instant adversary proceeding, and the trial court erred in ruling otherwise.
The matter, however, proceeded to final hearing and judgment, and all evidence which might have been adduced by discovery was before the County Judge. Each party had a full opportunity to be heard, to cross-examine and present evidence.
*617The appellant having failed to show that she has been prejudiced, or harmed, by the entry of the orders appealed, we conclude that the harmless error statute is applicable. Section 54.23, Florida Statutes, F.S.A.
We have considered the other arguments advanced by the appellant for reversal and have found them to be without merit.
Accordingly, the order is
Affirmed.
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In re Est. of Garfield A. Wood v. Chowning, 271 So. 2d 42 (Fla. 3d DCA 1972)…id is a civil matter or action. The proceeding is one conferred by statute, [*44] and would be by separate suit except that the statute directs it to be filed in the probate case. This rule has been reaffirmed in Dierickx v. Wisehart, Fla.App. 1967, 195 So. 2d 614. RCP 1.010, 30 F.S.A., provides that the rules of civil procedure will apply to all suits of a civil nature and all special statutory proceedings, and that the form, content, procedure and time for pleading in all special statutory proceedings shal…
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Hyman ASH v. Coconut Grove Bank, 448 So. 2d 605 (Fla. 3d DCA 1984)…e reverse the trial court’s order which limited the father’s award and remand for a determination of a reasonable fee for services rendered. Lucom v. Atlantic National Bank of West Palm Beach, 97 So. 2d 478 (Fla.1957); Dier- [*608] ickx v. Wisehart, 195 So. 2d 614 (Fla. 3d DCA 1967). As to the Bank, however, to the extent that the Bank’s abdication of its role as guardian of the property caused the fees to be increased beyond what would be normal and reasonable in defense of a petition for reimbursement, the…
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West v. Food Fair Stores, Inc., 305 So. 2d 280 (Fla. 3d DCA 1974)…ing a young, child, a package and a wallet while reaching for an item on a shelf. Assuming arguendo there is error, failure to show prejudice or harm renders it harmless error pursuant to § 59.041, Fla. Stat. See Dierickx v. Wisehart, Fla.App.1967, 195 So. 2d 614. Therefore, we conclude that no reversible error has been demonstrated and this cause hereby is affirmed. Affirmed.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Belle G. Brickell v. Di Pietro, 152 Fla. 429 (Fla. 1943)
- Virginia Willys Lucom (Formerly Virginia Willys de Landa) v. Atl. Nat'l Bank OF W. Palm Beach, 97 So. 2d 478 (Fla. 1957)
- In re Est. of E. Carter Estes v. Estes, 158 So. 2d 794 (Fla. 3d DCA 1963)