IN RE ESTATE OF CHARLES L. NYE, DECEASED. ERNEST M. BREED, APPELLANT,
v.
EUNICE K. NYE, AS EXECUTRIX OF THE ESTATE OF CHARLES L. NYE, DECEASED, APPELLEE
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An attorney for an estate executrix appealed an order fixing his attorney's fees at one-third of the total without providing him notice or a hearing. The court reversed, holding that due process requires notice and an opportunity to be heard before an attorney's fees order is entered, and that such orders cannot be used as punitive devices.
The court held that an attorney's fees order cannot be entered ex parte; notice and an opportunity to be heard are fundamental due process requirements. Additionally, an attorney's fees order cannot be used as a punitive device, and the County Judge cannot condition a rehearing on the attorney's submission to grievance committee investigation as a prerequisite.
[1] An order apportioning attorney's fees may not be used as a punitive device.
[2] An order fixing attorney's fees and allocating the fee between attorneys may not be entered ex parte when a dispute exists.
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“There is no authority for the use of an order apportioning attorney's fees as a punitive device.”
Establishes that fees orders cannot serve as punishment and must be entered pursuant to proper authority.
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Join FLexlaw to unlock all legal intelligenceAppellant was initially retained as attorney for the executrix of Charles L. Nye's estate. Late in the estate administration, he was succeeded by anot…
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The appellant was, at a late stage of the administration of this estate, succeeded as attorney for the executrix by another lawyer. Without notice and hearing, the County Judge entered an order fixing attorney’s fees and allocating the fee between the attorneys. The order gives appellant one-third of the fee and the successor attorney two-thirds. A petition for rehearing was filed. A stipulation was filed wherein the two attorneys agreed that the appellant should receive three-fourths of the fee and the successor attorney one-fourth, since the appellant had apparently done most of the work.
The County Judge, who had received some complaint from the executrix about the appellant’s handling of the estate, wrote the appellant that the petition would be granted if appellant would consent to the presence at “rehearing” (which would be, in effect, the first hearing appellant had been afforded) of members of the grievance committee. The appellant having declined this opportunity, this appeal ensued.
Most of this controversy was unnecessary. There was indeed some delay in handling some matters, but on the other hand, the executrix had suffered, for a time, a disabling illness. Certainly if the County Judge thinks that there is in this case a matter requiring investigation by the grievance committee he should by all means inform its chairman and cooperate with the committee. But there is no authority for the use of an order apportioning attorney’s fees as a punitive device.
Furthermore, this order should not have been entered ex parte. The record shows that a dispute existed, and notice and opportunity to be heard are fundamental requirements of due process.1 There is some correspondence in the record showing that a meeting before the judge with the executrix and appellant present was proposed, but at a time which conflicted with prior commitments of the appellant in another court, a fact promptly communicated.
Appellant’s right to a “rehearing” rests upon his being denied a hearing, and the petition should have been granted.
There is, from this record, an apparent informality in the practice of probate law on the part of appellant, and the County Judge has ample power to insure that the rules are complied with. On the other hand, he is, like all of us, bound by them himself.
Reversed and remanded.
HOBSON, A. C. J., and McNULTY, J., concur.
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Shappell v. Guardianship OF Stanley A. Naybar, 876 So. 2d 690 (Fla. 2d DCA 2004)…interested parties and an opportunity to be heard before the court rules on a 'contested petition for fees in an estate administration, Maxcy v. Brett (In re Estate of Maxcy), 280 So. 2d 10, 11 (Fla. 2d DCA 1973), Breed v. Nye (In re Estate of Nye), 263 So. 2d 252, 253 (Fla. 2d DCA 1972), these requirements of due process apply equally to a contested petition for fees in a guardianship proceeding. Additionally, even in-the absence of a challenge by an interested party to a guardian’s petition for fees, the ci…
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In re Est. of Charles v. Maxcy, 280 So. 2d 10 (Fla. 2d DCA 1973)…n and the entry of the order thereon, appellants were denied due process of law. Fuentes v. Shevin, (1972) 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; Prunty v. State ex rel. Williams, Fla.App.1969, 226 So. 2d 448; In re Estate of Nye, Fla.App.1972, 263 So. 2d 252. It is also clear that the County Judge did not comply with the mandate of this court, and therefore the order must be reversed. Sullivan v. Chase Federal Savings and Loan Ass’n., Fla.App.1961, 132 So. 2d 341; Rinker Materials Corp. v. Holloway Mat…