Poling v. City Bank & Trust Co. of St. Petersburg, s. 5929

• Decision Date: 20 July 1966
• Docket Number: 6409,Nos. 5929,6405,s. 5929
• Citation: 189 So.2d 176
• Parties: Gay POLING, Incompetent, Appellant, v. CITY BANK & TRUST COMPANY OF ST. PETERSBURG, and Charles R. Holley, Appellees. Gay POLING, Incompetent, Appellant, v. Charles R. HOLLEY and Allyn D. Kendis, Appellees. Gay POLING, Incompetent, Petitioner, v. Charles R. HOLLEY and Allyn D. Kendis, Respondents.
• Court: Florida District Court of Appeals

Page 176

189 So.2d 176

Gay POLING, Incompetent, Appellant, v. CITY BANK & TRUST COMPANY OF ST. PETERSBURG, and Charles R. Holley, Appellees.

Gay POLING, Incompetent, Appellant, v. Charles R. HOLLEY and Allyn D. Kendis, Appellees.

Gay POLING, Incompetent, Petitioner, v. Charles R. HOLLEY and Allyn D. Kendis, Respondents.

Nos. 5929, 6405, 6409.

District Court of Appeal of Florida, Second District.

July 20, 1966.

Fowler, White, Gillen, Humkey & Trenam, Tampa, and Edward M. Walsh, St. Petersburg, for appellant.

Holley & Osborne, St. Petersburg, for appellees.

PIERCE, Judge.

Case No. 5929 is the second appeal in this same case, both involving the alleged excessiveness of fees allowed by the County Judge of Pinellas County (Judge Richard A. Miller) in an incompetency proceeding therein pending. Case Nos. 6405 and 6409 involve additional aspects of review in the instant appeal.

Upon a petition alleging physical incapacity, Gay Poling was on April 23, 1959 adjudged incompetent by the County Judge of Pinellas County and on the same date City Bank & Trust Company of St. Petersburg was appointed guardian of the property of said incompetent and Charles R. Holley began acting as attorney for the guardian bank. At that time Poling was 57 years of age and a resident of St. Petersburg, Florida. In 1956 he had been seriously injured in the course of his employment in the City of Cleveland, Ohio, where he then lived, as a result of which injuries he became a paraplegic and thereafter moved to St. Petersburg with his wife. At the time of his adjudication, Poling's estate consisted of assets of approximately $4,800.00, plus a note and mortgage upon which was due a balance of approximately $11,206.00 drawing interest at the rate of 6% Per annum, payments upon which were being collected by a Cleveland bank, which was also collecting for Poling $105.70 per month pension money from the Public Employees Fund in Ohio. There had also been previously established in behalf of Poling a liquidated claim of $3,703.00 by the Industrial Commission and Workmen's Compensation Bureau of Ohio, representing unpaid temporary disability and medical payments accruing from the 1956 accident. At the time of his incompetency adjudication, Poling also had an unliquidated claim under the Ohio Compensation Laws for further benefits arising out of the aforesaid accident. In January, 1960, Mr. Holley, acting for the guardian bank, filed claim with the Compensation Bureau in Ohio seeking to perfect the unliquidated claim for further accident benefits.

On July 22, 1960, the County Judge entered order restoring Gay Poling to legal competency and ordered the guardian bank to 'within a reasonable time make full settlement with the said Gay Poling, file its final accounting with this Court and petition for its discharge.' However, notwithstanding said order of July 22, 1960, the incompetency proceeding was permitted to drag on for three more years, from July 22, 1960, to July 9, 1963, when the bank filed its petition for approval of its 'final accounting' and for allowance of fees for the bank as guardian, and attorney Holley filed petition for attorney's fee as the bank's attorney. On July 26, 1963, after hearing, the County Judge entered order allowing fees to the bank of $4,500.00 for acting as guardian and the total sum of $11,800.00 to attorney Holley for acting as attorney for the guardian bank. ¹

Gay Poling (who then was Sue juris but whose 'incompetency proceeding' was still pending in the Pinellas Court) took an appeal to this Court from the order of July 26, 1963, allowing fees as aforesaid, contending the same were excessive. On August 19, 1964, this Court, speaking through Judge Andrews, reversed the County Judge's order, holding that the guardian bank and its attorney Holley were entitled to reasonable fees for services rendered Only up to the date that the ward, Gay Poling, was declared competent on July 22, 1960, 'and for other services necessary to close out the guardianship.' See Poling v. City Bank & Trust Company of St. Petersburg, and Holley, 167 So.2d 52.

The case thereupon went back to the County Judge and in due course, on November 24, 1964, further hearing was had before said County Judge in the light of this Court's reversal. At the November, 1964 hearing only trust officer McPheeters of the guardian bank, and attorney Holley, testified. The County Judge thereafter, on November 30, 1964, entered new order awarding attorney Holley a total sum of $7,500 (of which $1,000 had already been paid by agreement) as his fees for representing the guardian, and awarding the guardian bank the sum of $4,000 for acting as guardian. From that order of November 30, 1964, Gay Poling, through his individually retained attorneys, has appealed to this Court and the cause is therefore here upon the merits of the second fee-awarding order aforesaid.

Before taking up the merits of the present main appeal, we will dispose of the two ancillary proceedings for review filed here in the same case. The County Judge, in the probate proceeding below, on April 26, 1965, while the instant appeal was pending in this Court, entered order reciting that Holley and his Cleveland, Ohio, associate counsel, Allyn B. Kendis, had filed suit in the Pinellas County Circuit Court on the law side seeking judgment against Gay Poling for attorney fees for legal services before the Workmen's Compensation Bureau of the Ohio Industrial Commission, that the aggregate amounts ultimately ordered to be paid to the bank and its attorneys for their services could 'very well be as much as or more than the assets presently held by the Guardian,' and that it was proper for the County Judge to put a hold order on the entire assets then remaining in the guardian's possession to insure payment of any judgment in favor of Holley and associate. The order then decreed that 'an attorneys' charging lien exists on all of (Poling's) assets now held' by the guardian bank in favor of attorneys Holley and Kendis, 'which lien is prior in dignity to all other claims against said funds other than the compensation of the guardian and Court costs and other proper expenses of the guardian,' said lien to 'continue until final determination' in the County Judge's Court and also the Circuit Court of the amounts due said attorneys for their professional services in connection with the Ohio Industrial Commission proceeding 'and the payment of any judgment or order.'

On June 23, 1965, Gay Poling, by his present counsel, filed his notice of interlocutory appeal (Case No. 6405) from said order of April 26, 1965, and on June 24, 1965, filed also in this Court petition for writ of certiorari (Case No. 6409) to review the same order. Uncertainty as to the proper remedy to review the said County Judge's order was the reason for filing both appellate proceedings.

We hold that certiorari is the proper proceeding for review and that the writ is available under the factual situation presented. As to the merits of the April 26, 1965 order, we hold that the County Judge below was wholly without jurisdiction to enter the same. In re: Baxter's Estate, Fla.1956, 91 So.2d 316; In re: Warner's Estate, 1948, 160 Fla. 460, 35 So.2d 296; In re Guardianship of White, Fla.App.1962, 140 So.2d 311. It was in effect an injunctive order and a decree impressing a lien upon cash assets, both of which are the exclusive functions of a Chancery Court. The interlocutory appeal should therefore be dismissed and the writ of certiorari issued, with directions to the County Judge to quash his said order of April 26, 1965.

This brings us to the main appeal involving the propriety of the second order allowing fees entered on November 30, 1964. As hereinbefore observed, this Court had previously reversed a prior order of the County Judge which awarded fees to the bank of $4,500 for its services as guardian over the period of fifty-one months from April, 1959 to July, 1963 and to Mr. Holley in the amount of $11,800 for acting as attorney for the guardian over the same period of time. The reversal was grounded upon the proposition that neither the guardian nor its attorney were entitled to fees out of the estate assets except for the period of legal incompetency of poling, which was from April 23, 1959 to July 22, 1960, or a period of fifteen months. The reversal opinion directed the County Judge 'to enter an order allowing reasonable fees for services rendered up to the date the ward was declared competent (July 22, 1960), and for such other services reasonably necessary to close out said guardianship.' Upon the going down of the mandate following the reversal, the County Judge held hearing on November 24, 1964, and on November 30, 1964, entered order awarding the guardian bank the sum of $4,000 as guardian's fees and $7,500 as attorney's fees to Mr. Holley. We hold that both latter fees were excessive and that, in the light of the record and of the entire history of the case in the lower Court and in this Court, this Court in the proper exercise of its appellate jurisdiction should enter a new order here fixing such fees.

Only two witnesses appeared and testified before the County Judge on November 24, 1964, Mr. McPheeters who was trust officer of the guardian bank, and Mr. Holley, the attorney. Mr. McPheeters testified in a dual capacity, first as to work done by the bank in its capacity as guardian, and secondly as an expert witness on the value of such services and what a reasonable fee therefor should be. Mr. Holley testified to the work he had done as attorney for the guardian but had no opinion as to the amount of fee to be awarded. The issue before the County Judge at the November, 1964 hearing was identical with the issue at the July, 1963 hearings, namely, the fixing of reasonable fees to be awarded to the guardian bank and the attorney for the bank for their respective services in connection with the estate. The only difference is...