Costello v. Davis

• Decision Date: 29 December 2004
• Docket Number: No. 2D03-4097.,2D03-4097.
• Citation: 890 So.2d 1179
• Parties: Tamara COSTELLO, individually and as Co-Personal Representative of the Estate of Scott Davis, deceased, Appellant, v. Gary DAVIS, individually and as Co-Personal Representative of the Estate of Scott Davis, deceased; and The Law Offices of Omar F. Medina, P.A., Appellees.
• Court: Florida District Court of Appeals

890 So.2d 1179

Tamara COSTELLO, individually and as Co-Personal Representative of the Estate of Scott Davis, deceased, Appellant, v. Gary DAVIS, individually and as Co-Personal Representative of the Estate of Scott Davis, deceased; and The Law Offices of Omar F. Medina, P.A., Appellees.

No. 2D03-4097.

District Court of Appeal of Florida, Second District.

December 29, 2004.

Raymond N. Seaford of Law Office of Ken Ward, P.A., Tampa, for Appellant.

Omar F. Medina of The Law Offices of Omar F. Medina, P.A., Tampa, for Appellees. WALLACE, Judge.

Tamara Costello, individually and as co-personal representative of the estate of Scott Davis, deceased, appeals the trial court's order awarding The Law Offices of Omar F. Medina, P.A., $50,000 in attorney's fees and $4371.51 in costs for services rendered in a wrongful death action. The contingent fee agreement pursuant to which Mr. Medina claimed entitlement to the fees and costs awarded was signed by Gary Davis, the other co-personal representative of the estate, but it was never signed or otherwise ratified by Mrs. Costello. Because co-personal representatives are required to act jointly and because Mr. Medina did not have a separate fee agreement with Mrs. Costello, we reverse the trial court's order to the extent that it awarded Mr. Medina fees and costs from Mrs. Costello's share of the settlement of the wrongful death action. We also hold that Mrs. Costello is entitled to interest on the amount of fees and costs withheld from her share of the recovery.

Facts and Procedural History

On or about July 9, 2000, Scott Davis and Christopher Lain stayed overnight at the Odessa home of Jeremiah Faust, a nineteen-year-old friend. Scott was also nineteen years old, and Christopher was sixteen. The home was owned by Jeremiah's father, Thomas J. Faust, but he was not at home that night. Following a series of events not material to the disposition of this appeal, Scott and Christopher were found dead in the living room of the Faust residence the next day. Jeremiah survived the incident.

Scott Davis died intestate. He was survived by his parents, Mr. Davis and Mrs. Costello, who are divorced. Each of the parents employed separate counsel to represent them on their claims arising from Scott's death. Mr. Davis was represented by Omar F. Medina of The Law Offices of Omar F. Medina, P.A. Raymond N. Seaford of The Law Office of Ken Ward, P.A., represented Mrs. Costello.

Mr. Faust had a homeowner's policy of insurance in effect at the time of the incident. The limits of liability per occurrence for bodily injury and death were $300,000. On June 19, 2001, a little less than one year after the incident, Mr. Faust's insurance carrier tendered the $300,000 policy limits to the Davis and Lain families equally in full settlement of all claims. Neither of the families accepted the offer.

On July 5, 2001, Mr. Davis entered into a contingent fee agreement with The Law Offices of Omar F. Medina, P.A., for representation in connection with the wrongful death of Scott Davis. The agreement provided that Mr. Medina would receive as compensation for his services 33 1/3% of any recovery up to one million dollars through the time of filing an answer and 40% of any recovery up to one million dollars from the time an answer was filed through trial. Mrs. Costello, who was represented by Mr. Seaford, was not identified in the agreement, nor did she sign it. One week later, on July 12, 2001, Mr. Davis filed an action for the wrongful death of Scott Davis against Mr. Faust and against a dissolved Florida corporation with which Mr. Faust was associated. The complaint identified Mr. Davis and Mrs. Costello as the decedent's survivors and included the following allegation: "Gary Davis is the Personal Representative of the ESTATE OF SCOTT DAVIS with the probate of the Estate being filed in the Circuit of Hillsborough County, Florida."

In fact, Mr. Davis had not yet been appointed as the personal representative of his son's estate either when he signed the contract with Mr. Medina's office or when the complaint was filed. Nor would he be the sole personal representative. Mr. Davis and Mrs. Costello had filed competing petitions for administration seeking to be appointed as the personal representative of their son's estate. On October 1, 2001, Mr. Davis and Mrs. Costello resolved their dispute about who would be appointed by stipulating to the appointment of both of them as co-personal representatives. On October 4, 2001, the probate division of the Hillsborough County Circuit Court appointed Mr. Davis and Mrs. Costello as co-personal representatives of the estate of Scott Davis, deceased. Letters of administration issued the same day. The letters of administration issued to Mr. Davis and Mrs. Costello included the following pertinent provision affixed by a rubber stamp: "Personal Representative is prohibited from entering into any settlement without prior authorization by the Probate Court. Copy of these Letters are required to be filed in the wrongful death proceeding."

Despite the appointment of joint personal representatives, Mr. Medina did not take steps to have Mrs. Costello, the other co-personal representative, added as a party plaintiff in the pending wrongful death action. Mr. Medina did not comply with the probate court's order to file a copy of the letters of administration in the wrongful death proceeding. Counsel for Mr. Faust would subsequently testify that he did not learn until after the case was settled that Mr. Davis and Mrs. Costello had been appointed as co-personal representatives or that Mr. Davis was not, as he had previously alleged in his complaint, the sole personal representative of the estate.

Meanwhile, the wrongful death action filed by Mr. Davis continued its progress in the trial court. Both defendants responded to the complaint with motions to dismiss. Because these motions were never disposed of, the defendants did not file answers to the complaint. Nevertheless, Mr. Medina took discovery and otherwise investigated the case. On April 1, 2002, Mr. Faust served a proposal for settlement pursuant to Florida Rule of Civil Procedure 1.442 to settle the case for $150,000, the same amount that had been offered before suit was filed. The proposal was not conditioned on court approval of the settlement. Mr. Medina did not notify Mrs. Costello or her counsel of the receipt of the proposal for settlement. They were not aware of the proposal and did not consent to its acceptance. Nevertheless, on April 29, 2002, Mr. Medina served a notice accepting the proposal for settlement on behalf of Mr. Davis as personal representative. None of the parties to the wrongful death action petitioned the court for approval of the settlement.

Mr. Faust's counsel forwarded to Mr. Medina the carrier's check for $150,000 and a release. On April 22, 2002, Mr. Davis, acting as "personal representative of the estate of Scott Davis," executed a document intended to release Mr. Faust and Jeremiah Faust from all claims in connection with the incident. On May 7, 2002, Mr. Medina's office and Mr. Davis, referred to in the document as "administrator of the estate of Scott Davis," executed a closing statement reflecting the disbursement of the settlement proceeds as follows:

Total Recovery $ 150,000.00 Attorney's — Fees-Law Offices of Omar F. Medina (40%) $ 60,000.00 Total Costs¹ $ 4,371.51 Total Attorney's Fees and Costs $ 64,371.51 Net to Estate $ 85,628.49

Although the closing statement reflects a disbursement of $85,628.49 to the estate of Scott Davis, the estate did not actually receive any funds because Mr. Davis and Mr. Medina allocated the entire recovery to Mr. Davis and Mrs. Costello in equal shares and apportioned the fees and costs charged by Mr. Medina against those shares. Mr. Medina's fees and costs, amounting to $64,371.51, and Mr. Davis's share, amounting to $42,814.25 ($85,628.49 ÷ 2 = $42,814.25), were promptly disbursed from the recovery.

Mr. Seaford had sent letters to Mr. Medina on November 18, 2001, December 11, 2001, and January 23, 2002, requesting information about the status of the wrongful death action. Mr. Medina made no written response to this correspondence.² On May 14, 2002, shortly after Mr. Davis had settled the case, Mr. Seaford wrote to Mr. Medina again requesting information about the status of the case. This time Mr. Medina responded promptly with a letter to Mr. Seaford informing him that the case had been settled and offering to send a check for Mrs. Costello's share of the recovery "after payment of fees and costs." On behalf of Mrs. Costello, Mr. Seaford objected to the deduction of any fees and costs from her share of the recovery and demanded payment of $75,000. After a further exchange of correspondence, Mr. Medina sent Mr. Seaford a check payable to Mrs. Costello in the amount of $42,814.24, representing the undisputed portion of Mrs. Costello's share of the recovery.

On July 8, 2002, Mrs. Costello filed her own wrongful death action against Mr. Faust and Jeremiah Faust. She alleged in her complaint that she was one of the co-personal representatives of the estate of Scott Davis, deceased, and she attached to the...