IN RE ESTATE OF IRA D. POTTS, DECEASED
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The executrix of an estate appeals an order awarding attorneys $750 in fees for defending an earlier appeal from a fee order. The appellate court reversed, holding that trial courts lack authority under Appellate Rule 3.16(e) to award attorney fees for services rendered in appellate proceedings.
The trial court lacked authority to award attorney fees for services rendered in the appellate court. Appellate Rule 3.16(e) provides that requests for attorney fees for appellate services must be presented to the appellate court, not the trial court, and trial courts are without power to fix such fees.
“The trial court is without authority to fix attorney's fees for services rendered in the Appellate Court or the Supreme Court, Fla. Appellate Rule 3.16, subd. e, 31 F.S.A.”
Establishes the core principle that trial courts lack authority to award fees for appellate services
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Join FLexlaw to unlock all legal intelligenceThe County Judge of Pinellas County awarded appellee attorneys $1,500 in partial attorney fees in an order dated December 13, 1965. The executrix appe…
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The appellant, executrix of decedent, appeals an Order of the County Judge of Pinellas County, Florida awarding appellee attorneys a fee of $750.00 “for their work in defending the appeal taken by the Executrix from the Order of this Court of December 13, 1965.” The Order of December 13, 1965 awarded the same appellee attorneys “a partial attorney’s fee in the amount of $1,500.00.” When appeal was taken from *320this Order the appellee attorneys moved to quash the appeal on the ground that the Order appealed from was not an appealable Order. This motion was. granted.
No motion for attorney’s fees was made in the Appellate Court as provided in appellate rule 3.16(e), 31 F.S.A. After the appeal was quashed the appellees sought a fee in the trial court and obtained the order from which this appeal is taken.
Appellant raises four points for reversal; (1) That the trial Court had no jurisdiction to award the fees for services rendered in the appellate court; (2) That an attorney is not entitled to fees for defending an appeal from an Order awarding him fees; (3) That inadequate notice was given of the fee hearing and; (4) That the fee was excessive.
We need only consider the first point on the ground that the court lacked authority to award the fee. The order appealed from clearly states that the fee was allowed “for their work in defending the appeal * *
Florida Appellate Rule 3.16(e) provides:
“e. Attorney’s Fees. Where attorney’s fees are allowable by law for services in the appellate court the request therefor shall be presented by motion filed with the clerk of the appellate court at or before the time of filing the party’s first brief, and shall be disposed of at the time the case is disposed of on the merits, unless otherwise ordered by the Court. The motion for attorney’s fees shall not be incorporated in the briefs or other bound papers but shall be filed on a separate paper. The trial court shall have full and complete power and authority upon due application to enforce the payment of fees allowed by the appellate court.”
This Court has categorically stated that a trial court is without authority to fix attorney’s fees for services rendered in the Appellate Court or the Supreme Court because of Appellate Rule 3.16(e).
In Howell v. Howell, Fla.App.1966, 183 So.2d 261, the Court awarded fees to counsel for wife in a divorce suit for services rendered in the Appellate Court and Su-» preme Court as well as for services rendered in the last appearance before the Chancellor. In reversing the Order this Court said:
“ * * * The trial court is without authority to fix attorney’s fees for services rendered in the Appellate Court or the Supreme Court, Fla. Appellate Rule 3.16, subd. e, 31 F.S.A. The Order appealed refers to legal services rendered in the Second District Court of Appeal and the Supreme Court of Florida, and any fee fixed by the lower Court for such services is not valid. The first appeal and the certiorari taken thereon have been concluded and no attorney’s fees having been fixed by the Court of Appeal or the Supreme Court, the right to attorney’s fees in those proceedings has been termi-' nated.” * * *
The case of In re DuVal’s Estate, Fla. App.1965, 174 So.2d 580, cited by the ap-pellee is not applicable to this point, since it did not involve fees for services in the Appellate Court.
The Order of the County Judge is reversed.
Appellees have filed motion for attorney’s fees in this appeal. There is no basis for allowance of such fees. The fact that a statute authorizes the trial court to allow fees under certain circumstances does not, ipso facto, warrant the allowance of fees on appeal. See Boston Ins. Co. v. Smith, Fla.App.1963, 149 So.2d 68, 69; John T. Wood Homes, Inc. v. Air Control Products, Inc., Fla.App.1965, 177 So.2d 709. There is no showing here that appellees’ services in the Appellate Court in any way benefited the estate. In Re DuVal’s Estate, supra, while defense of attorneys’ fees was involved the Court specifically found that *321the attorneys had performed a valuable service to the estate in requiring a recalcitrant legal representative to perform his duties.
The motion for attorney’s fees in this Court is denied.
SHANNON, Acting C. J., and PIERCE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Sunbeam Enters., Inc. v. Mr. and Mrs. Walter Upthegrove, 316 So. 2d 34 (Fla. 1975)…pra, the DCA-2 and DCA-1 respectively held that mechanics’ lien law does not authorize an award of attorneys’ fees to an appellee for defending an appeal. See also, Sharpe v. Thomas, Inc., 250 So. 2d 330 (Fla.App. 3, 1971). In In re Estate of Potts, 199 So. 2d 319 (Fla.App. 2, 1967), the DCA-2 held that the fact that a statute authorizes the trial court to allow fees does not ipso facto warrant the allowance of fees on appeal. However, the DCA-4 in Foxbilt Electric, Inc. v. Belefant, 280 So. 2d 28 (Fla.App. 4…
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Fatolitis v. Fatolitis, 271 So. 2d 227 (Fla. 2d DCA 1973)…therefore been terminated, and the trial Court does not have authority to fix attorneys’ fees for such services, Howell v. Howell, Fla.App.1966, 183 So. 2d 261; Anderson v. Anderson, Fla.App.1965, 180 So. 2d 360; In re Estate of Potts, Fla.App.1967, 199 So. 2d 319. The next question involves the amount awarded Mary for services rendered by her attorneys in the lower 'Court. John contends that the amount was not supported by competent evidence, and Mary contends that the amount awarded should have been the en…
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Bissmeyer v. Se. Bank, N.A., 596 So. 2d 678 (Fla. 2d DCA 1991)…rpretation 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…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Boston Ins. Co. v. Smith, 149 So. 2d 68 (Fla. 1st DCA 1963)
- In re Est. of Lavenia Buckley DuVAL v. Kirk, 174 So. 2d 580 (Fla. 2d DCA 1965)
- John T. Wood Homes, Inc. v. AIR Control Prods., Inc., 177 So. 2d 709 (Fla. 1st DCA 1965)
- Revenell v. State, 183 So. 2d 261 (Fla. 4th DCA 1966)
- Howell v. Howell, 183 So. 2d 261 (Fla. 2d DCA 1966)