September 14, 2012
Authored by: Luke Lantta
Lawyers like to get paid.
Clients like it if they can get someone else to pick up the tab for their lawyer’s fees.
Jeanne Bonney’s sister sued to remove Jeanne as co-personal representative of their aunt’s estate. Jeanne filed a third party complaint against her brother for conversion and unjust enrichment regarding funds allegedly taken from their aunt’s bank account. Jeanne then voluntarily dismissed that complaint against her brother.
The trial court awarded Jeanne’s brother attorney’s fees under two Florida statutes that allow for an award of fees: Sections 733.609 and 733.106(3). The trial court was wrong to award fees under either of these statutes.
Under the first statute (Fla. Stat. 733.609(1)), fees were not available to the brother because the third party complaint against the brother was not an action “for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s powers.”
Under the second statute (Fla. Stat. 733.106(3)), fees were not available because the brother’s attorney did not render “services to an estate.” This statute could’ve been triggered if the brother’s attorney’s services had the effect of preserving the testamentary intention of the will. But, because the claims against the brother were for unjust enrichment, his attorney’s services in defending against those claims didn’t do anything to “preserv[e] the testamentary intention of the will.”
The brother, therefore, got stuck with the bill.