Taxation & Estate Planning

5th DCA: It's official, probate litigators now have something new to worry about: the 30-day deadline applicable to motions for attorney-fees under Civ. Pro. Rule 1.525

By Juan C. Antúnez

Hays v. Lawrence, --- So.2d ----, 2009 WL 211048 (Fla. 5th DCA Jan 30, 2009)

The probate bar has been mulling over the question of if, when and how Civ. Pro. Rule 1.525, the rule setting a 30-day post-judgment deadline for filing fee motions in civil litigation, applies to contested probate and trust proceedings.  This is an important issue; the last thing any lawyer wants to do is blow past a deadline for claiming fees on behalf of his client. Here's what the rule says:

Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

Then a few months ago comes the Donkersloot opinion, a case out of the 2d DCA implying that Civ. Pro. Rule 1.525 applies to trust litigation (this was a first).  In the context of writing about that case I also linked to the excellent work being done by a subcommittee of the RPPTL section looking at possible statutory fixes [click here].

Then the Winter 2009 edition of ActionLine contained an article by Jon Scuderi, Esq., Goldman, Felcoski & Stone P.A., Naples, FL and Rebecca Y. Zung-Clough, Esq., Wealth Strategist, Northern Trust, NA, Naples FL, entitled Does Florida Rule of Civil Procedure 1.525 Apply to Probate and Trust Proceedings? Their conclusion: YES!

And now, in the linked-to case above, the 5th DCA has weighed in on whether Civ. Pro. Rule 1.525 applies to adversary probate proceedings. Their conclusion: YES!  Here's an excerpt:

Appellants filed a petition for administration, claiming, in part, that a handwritten document dated August 13, 1978, was the last will of James Douglas Lawrence. Appellants' petition requested that the court admit the handwritten document to probate and appoint them as personal representatives of Lawrence's estate. On the same day, Appellants filed a declaration that the proceeding was adversary. After a trial was held on the petition in accordance with Florida Probate Rule 5.025, the court issued a final order denying Appellants' petition for administration and refusing to admit the handwritten document to probate. Appellants appealed the decision to this Court, which ultimately dismissed the appeal on March 1, 2007.

On March 29, 2007, Appellants' attorneys filed a petition for order authorizing the payment of attorney's fees and expenses pursuant to section 733.106(2), Florida Statutes (2007). Appellees moved to strike the petition, arguing, in part, that the petition for fees and costs was untimely because it was filed seven months after the final order was entered instead of within thirty days as required by rule 1.525. The trial court granted the motion to strike.

The central issue framed by the parties is whether the rules of civil procedure applied to the proceeding below. The resolution of this issue turns on whether the underlying dispute in probate court was an adversary proceeding. In a probate action, if the case is determined to be an adversary proceeding, it “shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults.” Fla. Prob. R. 5.025(d)(2). Notwithstanding Appellants' prior declaration that the dispute was adversary, they urge that it was not. We disagree. See Fla. Prob. R. 5.025(b) (proceedings are adversary if declared as such).

Contrary to Appellant's argument, In re Estate of Beeman, 391 So.2d 276 (Fla. 4th DCA 1980), is distinguished. There, our sister court addressed the issue of whether the rules of civil procedure applied in a probate proceeding to determine fees of counsel for the estate. In ruling that the civil rules did not apply, the Beeman court emphasized that the proceeding below had not been “designated” an adversary proceeding. We think this finding distinguishes Beeman from this case. Here, the proceeding was declared as an adversary proceeding to determine the validity of the purported will and tried as such. Under these circumstances, the rules of civil procedure, and specifically, rule 1.525 were applicable. Therefore, the motion was not timely.
 

Lesson learned:

If anyone was hoping this trap-for-the-unwary would just go away, forget about it. Now that we have a couple of appellate decisions plus an ActionLine article plus the RPPTL section all talking about how Civ. Pro. Rule 1.525 applies to "adversary" probate proceedings and trust litigation, you need to assume everyone's heard of this issue by now and will be more than happy to spring this trap on you if you blow the 30-day deadline to file your motion for fees. You've been warned.

Full post as published by Florida Probate Litigation Blog on February 06, 2009 (boomark / email).