Estate of Paulk v. Lindamood

• Decision Date: 26 April 1988
• Docket Number: Nos. BR-267,87-255,s. BR-267
• Citation: 529 So.2d 1150,13 Fla. L. Weekly 1003
• Parties: 13 Fla. L. Weekly 1003 In re ESTATE OF Emily B. PAULK, deceased, Shaffey A. Bashure, Appellant, v. Rosalie LINDAMOOD, George Bashure, and Barnett Banks Trust Company, M.A., as Personal Representatives of the Estate of Emily B. Paulk, deceased, and Olga Davis, Appellees.
• Court: Florida District Court of Appeals

Page 1150

529 So.2d 1150

13 Fla. L. Weekly 1003

In re ESTATE OF Emily B. PAULK, deceased, Shaffey A. Bashure, Appellant, v. Rosalie LINDAMOOD, George Bashure, and Barnett Banks Trust Company, M.A., as Personal Representatives of the Estate of Emily B. Paulk, deceased, and Olga Davis, Appellees.

Nos. BR-267, 87-255.

District Court of Appeal of Florida,

First District.

April 26, 1988.

Rehearing Denied June 6, 1988.

Herbert T. Sussman of Boyer, Tanzler & Boyer, Jacksonville, for appellant.

John G. Grimsley and Randall L. Marker of Mahoney, Adams, Milam, Surface & Grimsley, Jacksonville, for appellee Rosalie Lindamood, et al.

John F. Callender, Jacksonville, for appellee Davis in BR-267.

ERVIN, Judge.

The appellant in Case Nos. BR-267 and 87-255, consolidated sua sponte by this court on appeal, appeals from the entry of two non-final orders following the lower court's issuance of a final judgment denying the appellant's challenge to the validity of certain testamentary documents executed by appellant's deceased sister, EMILY PAULK. IN CASE NO. BR-267,¹ we affirm as to the issue of attorney's fees awarded against appellant in favor of appellees Rosalie Lindamood, George Bashure and Barnett Banks Trust Company, trustee (hereafter collectively referred to as "estate"), as well as appellee Olga Davis. In Case No. 87-255, we reverse, concluding that the lower court lacked jurisdiction to enter a second order taxing costs against the appellant.

After letters of administration had issued, the appellant sought revocation of probate, alleging the testamentary incapacity of the decedent and the undue influence on the decedent by certain beneficiaries. A hearing was held and the lower court sustained the validity of the testamentary documents, reserving jurisdiction for the purpose of taxing costs and attorney's fees. ² Petitions for costs and attorney's fees were then filed by attorneys for both the estate and Olga Davis. On December 10, 1986, the court awarded fees and costs and ordered the estate to pay the same in the following order:

[F]irst from the portion of the probate and trust estates held for the benefit of Shaffey Bashure [the appellant] until such is exhausted; next, any unpaid balance shall be paid from the residuary probate estate ... and finally any unpaid balance shall be paid proportionately from the assets in the living trust....

This order contained no further reservation of jurisdiction.

The appellant Bashure appealed the award to this court (Case No. BR-257), and during the pendency of the appeal attorneys for the estate filed a subsequent "Motion to Tax Costs Against Shaffey A. Bashure", individually, requesting additional costs be recovered from the appellant, including expert witness fees for services that had been rendered during the earlier will-contest proceedings. On April 23, 1987, the lower court granted the motion and taxed an additional $7,945.50 in costs against the appellant. This order is the subject of the appeal in Case No. 87-255.

I. CASE NO. BR-267

In this appeal, Bashure raises two issues: (1) The trial court erred in awarding attorney's fees, the amount of which included compensation for work done by paralegal assistants, and (2) the court erred in ordering that attorney's fees be paid from the appellant's share of the residuary trust corpus. As to the first issue, appellant argues that because the trial court's order discloses that evidence was introduced at the hearing on the motion regarding the reasonableness of the services and the hourly rates of both the attorneys and paralegal assistants aiding the estate, the trial court necessarily separately assessed and awarded an hourly rate for nonlawyer services, contrary to the rule announced by this court in Bill Rivers Trailers, Inc. v. Miller, 489 So.2d 1139 (Fla. 1st DCA 1986), requiring that work delegated to lay personnel must become merged in the work product of the lawyer and cannot be separately compensated as attorney's fees. As there are several major distinctions between the facts recited in Bill Rivers and those at bar, we are not persuaded that the Bill Rivers rule applies to the instant case.

Although the trial court's order below referred to the "reasonableness of the services and the hourly rates of the attorneys and paralegal assistants," and the detailed billing summary attached to the petition for attorney's fees reflects 236.1 hours of attorney time and 211.8 hours of nonlawyer personnel services, the order nonetheless awarded reasonable compensation to the attorneys for the aggregate value of their services to the estate, and did not separately itemize and award reasonable compensation to both the lawyers and legal assistants for their respective services, as occurred in Bill Rivers. Paragraph two of the court's order awarding fees provides as follows Mahoney, Adams, Milam, Surface & Grimsley, P.A. rendered services beneficial to the estate and trusts. Again, detailed time records were introduced showing the efforts of John G. Grimsley, his partner, his associate, and his paralegal assistants. Mr. Grimsley's hourly rate of $160.00 is reasonable in view of his twenty years at the bar and his particularly high standing within his field of trusts, estate planning, probate practice and probate litigation. Credible expert testimony was introduced concerning the necessity and reasonableness of the services and the hourly rates of the attorneys and paralegal assistants. The reasonable value of the law firm's services beneficial to the estate and trusts is $44,417.50, together with costs and expenses at $1,472.56, for a total of $45,890.06.

From our examination of the above portion of the order, it is impossible for us to conclude, as did this court in Bill Rivers, that the lower court's order was violative of any ethical consideration of the Code of Professional Responsibility, especially that requiring the lawyer's "delegated work ... be such ... as loses its separate identity and becomes either the product or else merged in the product of the attorney himself." Fla.Bar Code Prof.Resp., E.C. 3-6. ³ The order on review, without any separate itemization, found the reasonable value of the firm's services to be the total sum of $44,417.50. Consequently there is nothing reflected on the face of the order suggesting that the delegated work performed by the paralegal personnel was not merged into the lawyers' completed product.

An additional problem we have in accepting appellant's argument is that the record before us does not include the transcription of the hearing on the estate's motion for costs and fees. It is of course appellant's burden to ensure that the record is prepared and transmitted in accordance with the Florida Rules of Appellate Procedure. See Fla.R.App.P. 9.200(e). Appellant, as in Moore v. Moore, 512 So.2d 1141 (Fla. 1st DCA 1987), has submitted neither a transcript of the hearing resulting in the order appealed, nor a statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(3). Therefore, as the record before us does not disclose that the lower court separately assessed a fee for services performed solely by nonlawyer personnel, we conclude that the fee awarded properly falls within the purview of services authorizing an award of a reasonable attorney's fee. ⁴

As to the second issue, relating to the propriety of the order directing that appellees' attorney's fees be paid from the residuary trust corpus, appellant argues that because Section 733.106(4), Florida Statutes, empowers the trial court, in ordering fees and costs, to "direct from what part of the estate they shall be paid" (e.s.), the court lacked the authority to direct the payment of fees from appellant's share in the residuary trust corpus. We disagree. The parties had stipulated that the issue of the decedent's will and trust agreements would be determined in one proceeding. Moreover, the will incorporated within it the inter vivos "pour over" trust provisions. It is well-established that a trust which is incorporated by reference in a will becomes a testamentary disposition, so as to entitle a court to use testamentary terms in its description, In re Estate of Potter, 469 So.2d 957 (Fla. 4th DCA 1985); Parker v. Florida First National Bank of Jacksonville, 419 So.2d 730 (Fla. 1st DCA 1982) (in an action by the personal representative of an estate for an accounting and invalidation of a trust, an assessment of fees and costs against the trust was proper). We therefore affirm as to this issue.

II. CASE NO. 87-255

Appellant next argues that the trial court lacked jurisdiction to enter the second order taxing costs. Appellees' counter-argument is that the order taxing costs against the appellant individually was the "first and only request for the taxation of costs against the non-prevailing party, appellant", and thus the trial court was not precluded from assessing fees and costs, as the prior order was directed only against appellant's share in the estate. We agree with the appellant's position and reverse.

The lower court's final judgment upholding the validity of the testamentary documents specifically reserved jurisdiction to determine the taxation of costs and attorney's fees incurred in that proceeding. Thereafter, petitions for attorney's fees and costs were filed on behalf of both the estate and Olga Davis, and an order granting same was entered by the court on December 10, 1986, assessing fees and costs against appellant's share in the estate, without any provision allowing a...