DuVal's Estate, In re, s. 4960

• Citation: 174 So.2d 580
• Decision Date: 28 April 1965
• Docket Number: Nos. 4960,5285,s. 4960
• Parties: In re ESTATE of Lavenla Buckley DuVAL, Deceased. Herbert DuVAL, III, as Administrator de Bonls Non Cum Testamento Annexo of the Estate and of the Last Will and Testament of Lavenia Buckley DuVAL, Deceased, Appellant, v. James E. KIRK, John C. Pinkerton, Richard S. Sparrow, Henry P. Trawick, Jr., and Donald C. McClelland, Jr., as co-partners d/b/a Kirk, Pinkertson, Sparrow, Trawick and McClelland, Appellees.
• Court: Court of Appeal of Florida (US)

Page 580

174 So.2d 580

In re ESTATE of Lavenla Buckley DuVAL, Deceased.

Herbert DuVAL, III, as Administrator de Bonls Non Cum Testamento Annexo of the Estate and of the Last Will and Testament of Lavenia Buckley DuVAL, Deceased, Appellant, v. James E. KIRK, John C. Pinkerton, Richard S. Sparrow, Henry P. Trawick, Jr., and Donald C. McClelland, Jr., as co-partners d/b/a Kirk, Pinkertson, Sparrow, Trawick and McClelland, Appellees.

Nos. 4960, 5285.

District Court of Appeal of Florida, Second District.

April 28, 1965.

Richard V. Harrison, Sarasota, for appellant.

Kirk, Pinkerton, Sparrow, Trawick & McClelland, Sarasota, for appellees.

STURGIS, WALLACE E., Associate Judge.

Two appeals involving the above estate are consolidated for review. Both were sued out by Herbert DuVal, Jr., the son and original executor of the last will and testatment of Lavenia Buckley DuVal, deceased. He died pending the appeals and is succeeded by his son, the present appellant, Herbert DuVal, III, as administrator of the estate and will of said decedent. The appeals seek reversal of two orders of the County Judge's Court of Sarasota County, Florida, hereinafter referred to as the 'probate court,' entered March 17 and April 14, 1964, respectively, in connection with a petition of the appellees to be awarded a fee for legal services rendered to the original legal representative of said estate and to be reimbursed for moneys laid out for costs and expenses incident to the administration thereof. The appeal from the order of April 14, 1964, was taken to the Supreme Court of Florida and transferred by that court to this court for disposition.

The material transactions took place during the executorship of Herbert DuVal, Jr., and unless otherwise indicated the term 'appellant' as used herein refers to said person in his said representative capacity. The conclusions and directives of this decision apply, of course, to his successor.

Appellant assigns error on 38 grounds and states the points of law involved by this appeal substantially as follows:

I. Whether the probate court erred in refusing to transfer appellees' petition for attorney's fees in decedent's estate and for reimbursement of costs advanced therein, together with appellant's responses thereto, to the circuit court for jury trial as an action at law of the issues made by said petition and appellant's so-called 'counterclaims' incorporated in his 'Responses' thereto.

II. Whether the probate court had jurisdiction to hear and adjudicate, over the demand of the appellant for trial by jury in the circuit court, an alleged dispute over the question of whether certain stock certificates inventoried and appraised as assets of the probate estate were in fact part thereof.

III. Whether the probate court failed to accord to appellant 'due process of law and a fair trial.'

IV. Whether the evidence was sufficient to support the award of attorney's fees and costs to appellees as made by the appealed order of April 14, 1964.

The orders appealed stem from an effort on the part of appellees to obtain compensation for legal services rendered and moneys laid out by them on behalf of the estate of the decedent and countering efforts of the appellant (a) to preclude the probate court from adjudicating the matters presented by appellees' petition, (b) to have the inventory and appraisal of the estate revised downward on the theory that by so doing there would be a corresponding reduction in the fee allowable for appellees' legal services; (c) to assert against the appellees, as an incident to any hearing on said petition, a so-called 'counterclaim' of the appellant; and (d) to procure a trial by jury in the probate court of the issues made by the petition and 'counterclaim' or, in the alternative, to have said petition and 'counterclaim' transferred to the circuit court for trial by jury as an action at law.

By order of March 17, 1964, the judge of the probate court disposed of sundry pending motions, settled certain procedural aspects, and scheduled appellees' petition to be finally heard before him, without jury, on March 27, 1964. Consequent upon that hearing, the probate court entered the order of April 14, 1964, awarding appellees $9,500.00 for their ordinary services in said estate, $1000.00 for their extraordinary services therein, and $191.67 for costs advanced therein for the account of appellant.

Before stating the points of law involved and discussing the applicable law, we deem it expedient to review the factual background in greater detail than would ordinarily be the case, especially the pleadings and procedures below. The appellant has seriously impugned the professional integrity of appellees who, like his own counsel here advocating his cause, as officers of the court are charged with the duty of maintaining the good repute of their brothers, consistent always with their corresponding duty to fairly, courteously, and justly present their clients' fairly debatable legal rights. Lest the reader lay this extensive opinion aside at this point, we hasten to say that the record herein utterly fails to support and claim or inference that appellees have failed or neglected to perform their professional duties in full compliance with the law and Canons of Ethics.

It is not contradicted that appellees represented appellant in all matters pertaining to the estate from the time decedent's will was filed for probate in November of 1962 until the appellant on November 5, 1963, informed the probate court that appellees were discharged. This act followed shortly after an exchange of correspondence between appellant and appellees in the course of which appellant expressed dissatisfaction with appellees' services and advised he would not agree to any fee for their services exceeding $2,500.00, payable 'after completing transferring of Mother's [decedent's] estate to my name.' Appellees countered with an offer to accept $6,500.00 in settlement thereof and hearing nothing further, on December 2, 1963, petitioned the probate court to award an amount to be paid by appellant for their legal services in the estate and to order appellant to reimburse them for costs advanced in his behalf.

On December 16, 1963, the probate court entered an order, later vacated, permitting appellees to withdraw as attorneys for appellant, and awarded an amount to be paid by appellant for their prior attorney's fees and costs. Appellant did not pay same and on January 8, 1964, appellees petitioned the court to remove him as executor. On January 16, 1964, appellees filed a suggestion to the effect that appellant had not paid their said claim, that he was attempting to transfer certain stocks of the estate, that he had removed all estate cash from a local bank, that he had removed from the jurisdiction of the court all assets of the estate except real property, that he was absent from and not a resident of this state, and that the fees and costs awarded them were wholly unsecured; and the probate court forthwith entered an order requiring appellant to within five days post a $10,000.00 bond as executor. On January 20, 1964, appellant petitioned the court to require appellees to show cause why said order should not be vacated and moved the court to stay all pending matters for at least fifteen days in order for appellant to consult with his attorney as to his rights and duties.

On January 23, 1964, appellees noticed the appellant for a hearing in the probate court on January 31, 1964, to dispose of (a) the aforesaid petition of the appellant, (b) the pending petition of the appellees for fees and costs, and (c) the suggestion of appellees that appellant be required to file a bond as required by the order of the court, failing which to remove him as executor and appoint a proper person in his place. On January 24, 1964, appellant filed sundry objections to the hearing as noticed, and on January 28, 1964, addressed sundry interrogatories to the appellees.

We pause here to observe that said interrogatories were at best nothing more than a fishing execursion, irrelevant and immaterial in most particulars, and of such a tedious and vexatious nature as to bear the earmarks of being in furtherance of what by now may be characterized as a highly dilatory effort on the part of appellant to frustrate the prompt and orderly disposition of appellees' pivotal petition. The trial judge concluded and we agree that discovery procedures as here employed were not available to appellant. They sought to require appellees to disclose: (a) the details of all agreements between appellant and appellees touching upon the amount of fees and time of payment for legal services incident to the estate (a matter as well within the knowledge of appellant as of appellees); (b) the location and custodian of any time slips or time records kept by appellees incident to the legal services rendered; (c) the details of all professional services rendered in the estate, naming the attorney who performed the particular service, the dates the same were performed, the time spent on each date, and the compensation claimed as to each date; (d) any extraordinary service rendered and the fees claimed therefor; (e) minute data as to transactions incident to the entry of the order dated December 16, 1963, which had long since been vacated, thus rendering the subject of said interrogatory moot; (f) whether appellees would seek to be compensated according to a minimum fee schedule of the bar, what percentages or formula would be used, what value appellees would assign to the probate estate in seeking their fees, and what percentage of administration of the estate they claimed was completed by their efforts prior to filing their petition; (g) matters concerning the notice, if any, that was given appellant of the hearing resulting in the mentioned order that was later vacated; (h) matters concerning the notice given to appellant with respect to the hearing...