IN RE ESTATE OF CHARLES V. MAXCY, DECEASED. PEGGY MAXCY, AS GUARDIAN FOR CHARLES G. MAXCY, A MINOR, ET AL., APPELLANTS,
v.
H. JAMES BRETT, AS ATTORNEY FOR FORMER CO-EXECUTRIX IRENE MAXCY WELLS O'MARA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appellate court reversed a county judge's award of $15,000 in attorney's fees to the appellee, holding that the hearing on the fee petition was held ex parte without notice to appellants in violation of due process and in disregard of the court's prior mandate. The case was remanded for the lower court to redetermine all attorney's fees in accordance with the appellate court's earlier opinion.
The award of attorney's fees is reversed because the ex parte hearing violated the appellants' due process rights and Florida statutory requirements for notice, and because the county judge failed to comply with the appellate court's mandate to redetermine fees in accordance with the prior opinion. The case is remanded for the county judge to determine all attorney's fees issues consistent with the appellate court's earlier guidance.
[1] A party is denied due process of law when a court proceeds ex parte on a petition for attorney's fees without notice to the party or their attorney.
[2] A court order entered without notice to a party or their attorney, in violation of statutory notice requirements, must be reversed.
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“By such ex parte hearing on the petition and the entry of the order thereon, appellants were denied due process of law.”
Establishes the constitutional violation at the heart of the reversal—the denial of notice and opportunity to be heard.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe estate of Charles V. Maxcy was being administered with Citizens National Bank of Orlando and Irene H. Maxcy as co-executors. The county judge init…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Ex Parte Hearing cases and more on FLexlaw
On June 24, 1969, the County Judge entered an order allowing attorneys for Citizens National Bank of Orlando, co-executor of the estate of Charles V. Maxcy, *11$25,000 for ordinary services and $25,932 for extraordinary services. On the same day the lower court awarded appellee, as attorney for the co-executor, Irene H. Maxcy, $20,000 for ordinary and extraordinary services. On appeal this court reversed those orders and remanded the cause for further proceedings, requiring the County Judge to re-examine the entire matter of overall fees and restructure them in line with the views expressed in our opinion. In Re Estate of Maxcy, Fla. App.1970, 240 S.2d 93.
On October 19, 1972, the County Judge held a hearing, without notice to appellants’ attorney, and on November 27, 1972, entered an order awarding appellee $15,000 for his services rendered to the co-executor of the estate.
Appellants’ motion to vacate or, alternatively, for rehearing, was denied, and this appeal ensued.
The record on appeal shows that appellants were not afforded the opportunity to be heard on appellee’s petition for attorney’s fees when the lower court permitted the hearing to proceed without notice to appellants or their attorney, in violation of, F.S., § 734.01(2) F.S.A. By such ex parte hearing on the petition 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 Materials Corp., Fla.App.1965, 175 So.2d 564; Posner v. Posner, Fla.1972, 257 So.2d 530.
On January 1, 1973, pursuant to Florida Constitution, Rev. Article V, Case No. 3080, styled In Re Estate of Charles V. Maxcy, .Deceased, in the County Judge’s Court, from which this appeal was taken, was transferred to the Circuit Court of the Tenth Judicial Circuit of the State of Florida while this appeal was pending. On January 31, 1973, that case was consolidated with two other cases pending in the Circuit Court.
Upon remand all issues of attorneys’ fees should be determined in accordance with our opinion in In Re Estate of Max-cy, reported in 240 So.2d 93.
Reversed and remanded.
MANN, C. J., and McNULTY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Fuentes v. Shevin, 407 U.S. 67 (U.S. 1972)
- Sari Posner v. Posner, 257 So. 2d 530 (Fla. 1972)
- Gregerson v. State, 175 So. 2d 564 (Fla. 2d DCA 1965)
- In re Est. of Charles v. Maxcy, 240 So. 2d 93 (Fla. 2d DCA 1970)
- Janney v. State, 226 So. 2d 448 (Fla. 1st DCA 1969)
- Kovens v. Bluestone, 132 So. 2d 341 (Fla. 3d DCA 1961)
- George J. Sullivan C.T.A. of the Estate of Mary E. Sutton Sullivan v. Chase Fed. Sav. & Loan Ass'n, 132 So. 2d 341 (Fla. 3d DCA 1961)
- In re Est. of Charles L. NYE v. NYE, 263 So. 2d 252 (Fla. 2d DCA 1972)