About This Case
THIS CAUSE came before the Court on December 4, 2017, upon Ronald Friedman's Petition for Order
Authorizing Payment of Attorney's Fees and Costs, Petition for Order Authorizing Payment of Personal
Representative's Commission, and Huth, Pratt and Milhauser's Amended Petition for Order Authorizing
Payment of Attorney's Fees and Expenses. The estate was represented by Brandau Pratt, Esq., of the Law Firm of Huth, Pratt & Milhauser, PLLC ("HPM"), and Ronald Friedman, Esq. American Research Bureau ("ARB") was represented by Lawrence Livoti, Esq. The Court, after hearing testimony of Mr. Friedman, Mr. Pratt, and
expert witness Lee McElroy, Esq., argument of counsel, reviewing the file and legal memoranda submitted, and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:
Finding of Fact
Background and Prior Proceeding.
I.This is an intestate estate administration proceeding for the Decedent, Ginger Roberts. The assets of the estate per the Amended Inventory consisted of decedent's homestead property, an automobile that was sold, cash, bank accounts, investment accounts, retirement accounts, and life insurance benefits for a total inventory value of
$1,770,000.00, excluding the homestead property. The stocks were already in a brokerage account at the time of the decedent's death. Friedman liquidated most of the securities in January, 2017. Other than the homestead,
there is no business to run, no other real estate to manage, nor any other factors to make this $1. 77 million
dollars' estate, excluding the value of the homestead, otherwise remarkable, except that the estate, which is being administered intestate, has a high number of intestate beneficiaries (i.e., fifty-three (53) interested parties).
2.. Petitioner Friedman, who was Florida Bar Board Certified in Wills, Trusts and Estates until July 31, 2017, is the duly appointed and acting Personal Representative of the Estate and the attorney for the Estate. Petitioner requests the statutory fee for serving as personal representative and the statutory fee for handling the ordinary estate administration services.
3. Friedman's presumptively reasonable fee as personal representative is $53,107.80 pursuant to F.S. 733.617 and $53,107.80 pursuant to F.S. 733.6171.
4. Petitioner retained HPM to represent him as Personal Representative of the Estate purportedly to handle extraordinary services. HPM was hired by Friedman in January, 2017, but did not have a written retainer agreement until May 31, 2017. The agreement stated HPM is to assist Friedman for extraordinary services, not to exclusively perform them and not to perform personal representative duties.
5. Petitioner has filed a petition for payment for (1) a personal representative's commission, (2) ordinary estate administration attorney's fees, and (3) extraordinary attorney's fees.
6. HPM seeks interim fees of $34,288.00 for performing allegedly extraordinary services as co-counsel for the personal representative to date.
7. Lawrence Livoti, who represents ARB, an heir search service, objects to the payment of the extraordinary services.
I.This is an intestate estate administration proceeding for the Decedent, Ginger Roberts. The assets of the estate per the Amended Inventory consisted of decedent's homestead property, an automobile that was sold, cash, bank accounts, investment accounts, retirement accounts, and life insurance benefits for a total inventory value of
$1,770,000.00, excluding the homestead property. The stocks were already in a brokerage account at the time of the decedent's death. Friedman liquidated most of the securities in January, 2017. Other than the homestead,
there is no business to run, no other real estate to manage, nor any other factors to make this $1. 77 million
dollars' estate, excluding the value of the homestead, otherwise remarkable, except that the estate, which is being administered intestate, has a high number of intestate beneficiaries (i.e., fifty-three (53) interested parties).
2.. Petitioner Friedman, who was Florida Bar Board Certified in Wills, Trusts and Estates until July 31, 2017, is the duly appointed and acting Personal Representative of the Estate and the attorney for the Estate. Petitioner requests the statutory fee for serving as personal representative and the statutory fee for handling the ordinary estate administration services.
3. Friedman's presumptively reasonable fee as personal representative is $53,107.80 pursuant to F.S. 733.617 and $53,107.80 pursuant to F.S. 733.6171.
4. Petitioner retained HPM to represent him as Personal Representative of the Estate purportedly to handle extraordinary services. HPM was hired by Friedman in January, 2017, but did not have a written retainer agreement until May 31, 2017. The agreement stated HPM is to assist Friedman for extraordinary services, not to exclusively perform them and not to perform personal representative duties.
5. Petitioner has filed a petition for payment for (1) a personal representative's commission, (2) ordinary estate administration attorney's fees, and (3) extraordinary attorney's fees.
6. HPM seeks interim fees of $34,288.00 for performing allegedly extraordinary services as co-counsel for the personal representative to date.
7. Lawrence Livoti, who represents ARB, an heir search service, objects to the payment of the extraordinary services.
Testimony
8. Ronald R, Friedman, Efill.. --The Court heard testimony from Petitioner Friedman, who testified regarding the probate proceeding itself, serving as Personal Representative, and the ordinary services performed by him in administering the Estate as Counsel. Mr. Friedman further testified about his hours spent as Personal Representative and Counsel, and the scope of work performed by him. At the hearing, it was stipulated that Mr. Friedman would receive the statutory personal representative's commission, as well as the statutory attorneys' fee for performing ordinary estate administration services.
9. Brandan J. Pratt, Efill. --Mr. Pratt testified in behalf of HPM about the probate proceeding and the extraordinary services performed by the firm for the Estate, and the nature and scope of the time expended by HPM's attorneys and paralegals involved in the case, their hourly rates and their hours spent.
10. Regarding the scope of extraordinary services performed by HPM, Mr. Pratt testified that he was involved in proceedings to determine beneficiaries, matters concerning a contested claim, and issues concerning the sale of real property and determination of homestead.
a. Determination of Beneficiaries
i. There will likely be around fifty (50) intestate beneficiaries of this estate. Mr. Pratt testified that he assisted in preparing and editing documents associated with the Petition to Determine Heirs including the petition itself and various affidavits of heirship. When it became clear that appropriate witnesses could not be located to prove the paternal heirs, Mr. Pratt assisted in the hiring of a genealogist to prepare the appropriate documentation.
ii. In addition, because the petitions concerning determination of beneficiaries and pertaining to the sale of property and determination of homestead needed to be served on fifty-three (53) interested persons by formal notice, Mr. Pratt indicated that while Mr. Livoti and Mr. Friedman provided many of the addresses of the interested persons, there were still many addresses that were incomplete or incorrect. This information was discovered after formal notices were returned as undeliverable. When Mr. Livoti and Mr. Friedman were not able to provide correct addresses for many beneficiaries, Mr. Pratt utilized a skip trace service that he has at his firm, Accurint, which is not available to the average person. Mr. Pratt explained the process of obtaining correct addresses by obtaining phone numbers and calling relatives that were close in relation to the beneficiary on the chart of consanguinity.
iii. Although the Court recognizes that "proceedings for determination of beneficiaries," under certain circumstances can constitute extraordinary services entitling the attorney to compensation for such, here the Court finds much of the work performed by HPM on this issue related to non-complex, ordinary administrative issues such as simply trying to find the address of purported beneficiaries of the estate. The Court finds that these types of tasks would ordinarily fall within ordinary administration. As such, the Court finds that the bulk of such services were not extraordinary in this instance and should have reasonably been subsumed within Mr. Friedman's responsibilities.
iv. Notably, however, despite Mr. Pratt's testimony regarding the work his firm did in attempting to find addresses, it was ARB who filed a Petition for Determination of Maternal Beneficiaries, together with a Maternal Family Chart and Maternal Proof Documents on September 29, 2017. Mr. Friedman testified he
received these documents and found them to be acceptable. Mr. Pratt's billings reflect charges for three individuals in his office to review these same documents. Importantly, to date, no Petition for Determination of Paternal Beneficiaries has been filed by the estate.
b. Contested Claim
i. Mr. Pratt testified that he handled adversarial proceedings or potential litigation by or against the estate. Specifically, when Mr. Pratt was retained, it was unclear whether the estate would be administered testate or intestate. Mr. Friedman was looking for a will but could not find one. Mr. Friedman testified that the decedent's ex-husband Kenneth Roberts, removed items and documents from the decedent's home shortly after she died. Mr. Friedman, testified that he contacted Mr. Roberts on several occasions, but was not able to obtain a copy of the will and was not able to convince Mr. Roberts to return the documents that he took. Mr. Friedman testified that he asked Mr. Pratt to send Mr. Roberts letters threatening legal action. Mr. Pratt was able to obtain the documents that Mr. Roberts took after sending letters threatening litigation. A similar situation occurred with a Trust of which the Decedent was a beneficiary. Ultimately, Mr. Roberts gave Mr. Friedman the names, but not addresses, of five paternal cousins who were listed in the initial Petition for Administration in 2016. Mr. Pratt testified numerous hours were spent at his office looking for addresses of several heirs. He also testified that Mr. Roberts filed a claim against the estate requesting reimbursement for inappropriate expenses, but that the claim was not timely filed. Thereafter, Mr. Friedman filed an objection to the claim. Because Mr. Roberts did not timely file an independent action, Mr. Pratt filed a Motion to Strike Claim. Mr. Roberts responded to the Motion to Strike, after which a hearing was held.
ii. On July 27, 2017, the Motion to Strike was granted in part and denied in part. This Court ruled pre-death expenses should be stricken for failure to timely file an independent action; and post-death expenses are administrative and compensable. The post-death expenses included biohazard clean up $1,937.50, cremation of$1,475.00 and lawn services of$440.00 totaling $3,852.50, almost exactly half of Mr. Robert's claim. HPM billed $2,950.00 specifically attributed to fighting this claim. Not included were daily block billings of undelineated charges including fees for opposing the subject claim and other non-specific time charges. Despite HPM's work, this claim remains unresolved. Mr. Friedman testified he delegated work relating to Mr. Roberts, as well as an attorney in Alabama to HPM because Mr. Friedman could not get along with them.
iii. Simply because Mr. Friedman felt it desirable for whatever reason to have HPM perform such services for him does not morph such services into something extraordinary. Here, the Court does not find most of the time incurred pertaining to the contested claim to be extraordinary, including in particular the striking of that portion of the claim relating to pre-death expenses upon the failure of the claimant to file an independent action. As such, the Court finds it appropriate to discount the HPM time expended on contesting the Robert's claim.
c. Sale of Property /Determination of Homestead,
i. Mr. Pratt also testified that he was involved in the sale of the real property by the personal representative.
There is a piece of property in the estate, but it is not titled in the decedent's name. Upon appointment as personal representative, it was not apparent whether the property would qualify as the decedent's homestead. Mr. Friedman put the property up for auction and entered into contract to sell the property. When Mr. Pratt was retained, the contract had already been entered into.
ii. Mr. Friedman testified that as early as January 27, 2017, he was aware the homestead could not be sold without an heirship determination and consents from the heirs. Despite this, HPM scheduled a hearing on the Petition to Sell on June 13, 2017. This Court denied the Petition and advised HPM consents of the beneficiaries were required to sell the homestead property. The Court finds the issue to have been basic and fundamental and certainly something falling within the knowledge and ability of an attorney Board Certified in Wills, Trusts, and Estates.
iii. According to Mr. Pratt. the Petition for Authorization to Sell Real Property morphed into a Petition to Determine Homestead. Mr. Pratt testified that he has handled issues with the Homestead, which include the Notice of Taking Possession of Protected Homestead and reviewing and editing the homestead petition and commenting on the order determining homestead which will require identifying the correct fractional interest of each intestate heir. In addition, Mr. Pratt testified that he has been working towards the sale of the homestead including potentially having the intestate heirs sign deeds, having the intestate heirs sign powers of attorney, or filing a partition action.
iv. After reviewing the file and the specific time entries, the Court finds the present efforts to attempt to sell the real estate and the legal services rendered in connection therewith to be premature. Further, under the circumstances, it remains to be determined whether there is actually any benefit to the estate from such services.
d. Other Issues
i. Finally, Mr. Pratt testified that he has been involved in the tax issues involving the decedent's estate. But Mr. Pratt did not participate in any tax planning, and more importantly a CPA was hired by Mr. Friedman to prepare the income tax returns. Although Mr. Pratt testified he "reviewed" the tax return, the Court finds this was Mr. Friedman's responsibility and an example of the delegation of a responsibility that fell within the ordinary administration of the estate. To the extent HPM performed any services, such services were duplicative of Mr. Friedman's and the CPA's efforts.
ii. In addition, Mr. Pratt has been involved in contested fee petitions that w re the subject of this Order.
11. Mr. Pratt testified as to the bills containing the attorneys' time and paralegal time for the period January 10, 2017 through October 30, 2017. This time is reflected in the fee chart below.
See PDF document for chart.
12. Expert Witness Testimony:-R, Lee McElroy, . During the evidentiary hearing on the petition, the Petitioner presented attorney, R. Lee McElroy, Esq. who testified as an attorney's fee expert on behalf of Petitioner. Mr. McElroy has been a member in good standing with the Florida Bar since 2005. He has substantial experience in areas of Probate and Estate litigation, removal and surcharge cases. Mr. McElroy is a member of the Executive Council of The Florida Bar's Real Property Probate and Trust Law Section and he lectures regularly on Probate and Probate litigation topics. Mr. McElroy focuses his practice on complex and disputed Probate, Estate, and Trust litigation matters, including, but not limited to, surcharge and removal litigation.
13. Mr. McElroy testified: !) his standard hourly rate is $395.00; 2) he has been qualified as an Attorney's Fee Expert in Probate and Trust matters in Palm Beach County, Florida; 3) he spent 7.7 hours preparing for and attending the hearing; and, 4) all of the services provided by HPM were for extraordinary expenses. Mr. McElroy also testified: 1) that the hourly rates for the paralegals that billed on the case were at market value; 2)the hourly rates for the attorney who worked on the case were below market value; and, 3) he applied the Rowe factors set forth in Rule 4-1.5(b) of the Rules Regulating the Florida Bar in opining that the lawyer and paralegal time listed in the chart that follows was reasonably necessary to administer the estate and that the corresponding rates and hours listed were reasonable for such proceeding for the time period of January 10, 2017 through October 30, 2017. Mr. McElroy testified that he recommended the following reductions to the billers from what was presented on the HPM bills:
a. BJP = subtract 1.5 hours ($562.50)
b. JLF = subtract 2.8 hours ($700.00)
c. LH = Subtract 1.9 hours ($274.00)
d. LM = subtract 27 hours ($3,510.00)
e. Total= subtract 33.2 ($5,046.50)
14. Mr. McElroy testified that all costs listed on the HPM bills were reasonable and necessary for the administration of the Estate.
15. Mr. McElroy testified twenty-seven out of fifty hours of paralegal time should have been designated secretarial and not compensable, but did not state which services were excluded. Mr. McElroy also provided no information as to what significant legal support was provided by HPM's paralegals. Mr. McElroy also failed to clarify why Mr. Pratt required 55.2 hours, together with another 28.5 hours billed for an associate, totaling 84 hours of attorney time. on alleged extraordinary matters some of which were clearly prematurely pursued and how such services were necessary or otherwise have benefitted the estate.
8. Ronald R, Friedman, Efill.. --The Court heard testimony from Petitioner Friedman, who testified regarding the probate proceeding itself, serving as Personal Representative, and the ordinary services performed by him in administering the Estate as Counsel. Mr. Friedman further testified about his hours spent as Personal Representative and Counsel, and the scope of work performed by him. At the hearing, it was stipulated that Mr. Friedman would receive the statutory personal representative's commission, as well as the statutory attorneys' fee for performing ordinary estate administration services.
9. Brandan J. Pratt, Efill. --Mr. Pratt testified in behalf of HPM about the probate proceeding and the extraordinary services performed by the firm for the Estate, and the nature and scope of the time expended by HPM's attorneys and paralegals involved in the case, their hourly rates and their hours spent.
10. Regarding the scope of extraordinary services performed by HPM, Mr. Pratt testified that he was involved in proceedings to determine beneficiaries, matters concerning a contested claim, and issues concerning the sale of real property and determination of homestead.
a. Determination of Beneficiaries
i. There will likely be around fifty (50) intestate beneficiaries of this estate. Mr. Pratt testified that he assisted in preparing and editing documents associated with the Petition to Determine Heirs including the petition itself and various affidavits of heirship. When it became clear that appropriate witnesses could not be located to prove the paternal heirs, Mr. Pratt assisted in the hiring of a genealogist to prepare the appropriate documentation.
ii. In addition, because the petitions concerning determination of beneficiaries and pertaining to the sale of property and determination of homestead needed to be served on fifty-three (53) interested persons by formal notice, Mr. Pratt indicated that while Mr. Livoti and Mr. Friedman provided many of the addresses of the interested persons, there were still many addresses that were incomplete or incorrect. This information was discovered after formal notices were returned as undeliverable. When Mr. Livoti and Mr. Friedman were not able to provide correct addresses for many beneficiaries, Mr. Pratt utilized a skip trace service that he has at his firm, Accurint, which is not available to the average person. Mr. Pratt explained the process of obtaining correct addresses by obtaining phone numbers and calling relatives that were close in relation to the beneficiary on the chart of consanguinity.
iii. Although the Court recognizes that "proceedings for determination of beneficiaries," under certain circumstances can constitute extraordinary services entitling the attorney to compensation for such, here the Court finds much of the work performed by HPM on this issue related to non-complex, ordinary administrative issues such as simply trying to find the address of purported beneficiaries of the estate. The Court finds that these types of tasks would ordinarily fall within ordinary administration. As such, the Court finds that the bulk of such services were not extraordinary in this instance and should have reasonably been subsumed within Mr. Friedman's responsibilities.
iv. Notably, however, despite Mr. Pratt's testimony regarding the work his firm did in attempting to find addresses, it was ARB who filed a Petition for Determination of Maternal Beneficiaries, together with a Maternal Family Chart and Maternal Proof Documents on September 29, 2017. Mr. Friedman testified he
received these documents and found them to be acceptable. Mr. Pratt's billings reflect charges for three individuals in his office to review these same documents. Importantly, to date, no Petition for Determination of Paternal Beneficiaries has been filed by the estate.
b. Contested Claim
i. Mr. Pratt testified that he handled adversarial proceedings or potential litigation by or against the estate. Specifically, when Mr. Pratt was retained, it was unclear whether the estate would be administered testate or intestate. Mr. Friedman was looking for a will but could not find one. Mr. Friedman testified that the decedent's ex-husband Kenneth Roberts, removed items and documents from the decedent's home shortly after she died. Mr. Friedman, testified that he contacted Mr. Roberts on several occasions, but was not able to obtain a copy of the will and was not able to convince Mr. Roberts to return the documents that he took. Mr. Friedman testified that he asked Mr. Pratt to send Mr. Roberts letters threatening legal action. Mr. Pratt was able to obtain the documents that Mr. Roberts took after sending letters threatening litigation. A similar situation occurred with a Trust of which the Decedent was a beneficiary. Ultimately, Mr. Roberts gave Mr. Friedman the names, but not addresses, of five paternal cousins who were listed in the initial Petition for Administration in 2016. Mr. Pratt testified numerous hours were spent at his office looking for addresses of several heirs. He also testified that Mr. Roberts filed a claim against the estate requesting reimbursement for inappropriate expenses, but that the claim was not timely filed. Thereafter, Mr. Friedman filed an objection to the claim. Because Mr. Roberts did not timely file an independent action, Mr. Pratt filed a Motion to Strike Claim. Mr. Roberts responded to the Motion to Strike, after which a hearing was held.
ii. On July 27, 2017, the Motion to Strike was granted in part and denied in part. This Court ruled pre-death expenses should be stricken for failure to timely file an independent action; and post-death expenses are administrative and compensable. The post-death expenses included biohazard clean up $1,937.50, cremation of$1,475.00 and lawn services of$440.00 totaling $3,852.50, almost exactly half of Mr. Robert's claim. HPM billed $2,950.00 specifically attributed to fighting this claim. Not included were daily block billings of undelineated charges including fees for opposing the subject claim and other non-specific time charges. Despite HPM's work, this claim remains unresolved. Mr. Friedman testified he delegated work relating to Mr. Roberts, as well as an attorney in Alabama to HPM because Mr. Friedman could not get along with them.
iii. Simply because Mr. Friedman felt it desirable for whatever reason to have HPM perform such services for him does not morph such services into something extraordinary. Here, the Court does not find most of the time incurred pertaining to the contested claim to be extraordinary, including in particular the striking of that portion of the claim relating to pre-death expenses upon the failure of the claimant to file an independent action. As such, the Court finds it appropriate to discount the HPM time expended on contesting the Robert's claim.
c. Sale of Property /Determination of Homestead,
i. Mr. Pratt also testified that he was involved in the sale of the real property by the personal representative.
There is a piece of property in the estate, but it is not titled in the decedent's name. Upon appointment as personal representative, it was not apparent whether the property would qualify as the decedent's homestead. Mr. Friedman put the property up for auction and entered into contract to sell the property. When Mr. Pratt was retained, the contract had already been entered into.
ii. Mr. Friedman testified that as early as January 27, 2017, he was aware the homestead could not be sold without an heirship determination and consents from the heirs. Despite this, HPM scheduled a hearing on the Petition to Sell on June 13, 2017. This Court denied the Petition and advised HPM consents of the beneficiaries were required to sell the homestead property. The Court finds the issue to have been basic and fundamental and certainly something falling within the knowledge and ability of an attorney Board Certified in Wills, Trusts, and Estates.
iii. According to Mr. Pratt. the Petition for Authorization to Sell Real Property morphed into a Petition to Determine Homestead. Mr. Pratt testified that he has handled issues with the Homestead, which include the Notice of Taking Possession of Protected Homestead and reviewing and editing the homestead petition and commenting on the order determining homestead which will require identifying the correct fractional interest of each intestate heir. In addition, Mr. Pratt testified that he has been working towards the sale of the homestead including potentially having the intestate heirs sign deeds, having the intestate heirs sign powers of attorney, or filing a partition action.
iv. After reviewing the file and the specific time entries, the Court finds the present efforts to attempt to sell the real estate and the legal services rendered in connection therewith to be premature. Further, under the circumstances, it remains to be determined whether there is actually any benefit to the estate from such services.
d. Other Issues
i. Finally, Mr. Pratt testified that he has been involved in the tax issues involving the decedent's estate. But Mr. Pratt did not participate in any tax planning, and more importantly a CPA was hired by Mr. Friedman to prepare the income tax returns. Although Mr. Pratt testified he "reviewed" the tax return, the Court finds this was Mr. Friedman's responsibility and an example of the delegation of a responsibility that fell within the ordinary administration of the estate. To the extent HPM performed any services, such services were duplicative of Mr. Friedman's and the CPA's efforts.
ii. In addition, Mr. Pratt has been involved in contested fee petitions that w re the subject of this Order.
11. Mr. Pratt testified as to the bills containing the attorneys' time and paralegal time for the period January 10, 2017 through October 30, 2017. This time is reflected in the fee chart below.
See PDF document for chart.
12. Expert Witness Testimony:-R, Lee McElroy, . During the evidentiary hearing on the petition, the Petitioner presented attorney, R. Lee McElroy, Esq. who testified as an attorney's fee expert on behalf of Petitioner. Mr. McElroy has been a member in good standing with the Florida Bar since 2005. He has substantial experience in areas of Probate and Estate litigation, removal and surcharge cases. Mr. McElroy is a member of the Executive Council of The Florida Bar's Real Property Probate and Trust Law Section and he lectures regularly on Probate and Probate litigation topics. Mr. McElroy focuses his practice on complex and disputed Probate, Estate, and Trust litigation matters, including, but not limited to, surcharge and removal litigation.
13. Mr. McElroy testified: !) his standard hourly rate is $395.00; 2) he has been qualified as an Attorney's Fee Expert in Probate and Trust matters in Palm Beach County, Florida; 3) he spent 7.7 hours preparing for and attending the hearing; and, 4) all of the services provided by HPM were for extraordinary expenses. Mr. McElroy also testified: 1) that the hourly rates for the paralegals that billed on the case were at market value; 2)the hourly rates for the attorney who worked on the case were below market value; and, 3) he applied the Rowe factors set forth in Rule 4-1.5(b) of the Rules Regulating the Florida Bar in opining that the lawyer and paralegal time listed in the chart that follows was reasonably necessary to administer the estate and that the corresponding rates and hours listed were reasonable for such proceeding for the time period of January 10, 2017 through October 30, 2017. Mr. McElroy testified that he recommended the following reductions to the billers from what was presented on the HPM bills:
a. BJP = subtract 1.5 hours ($562.50)
b. JLF = subtract 2.8 hours ($700.00)
c. LH = Subtract 1.9 hours ($274.00)
d. LM = subtract 27 hours ($3,510.00)
e. Total= subtract 33.2 ($5,046.50)
14. Mr. McElroy testified that all costs listed on the HPM bills were reasonable and necessary for the administration of the Estate.
15. Mr. McElroy testified twenty-seven out of fifty hours of paralegal time should have been designated secretarial and not compensable, but did not state which services were excluded. Mr. McElroy also provided no information as to what significant legal support was provided by HPM's paralegals. Mr. McElroy also failed to clarify why Mr. Pratt required 55.2 hours, together with another 28.5 hours billed for an associate, totaling 84 hours of attorney time. on alleged extraordinary matters some of which were clearly prematurely pursued and how such services were necessary or otherwise have benefitted the estate.
16. Pursuant to Section 733.6175(2), Florida Statutes, "[c]ourt proceedings to determine reasonable
compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administration process, and the costs, including attorneys' fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the estate unless the court finds the requested compensation to be
substantially unreasonable."
17. Pursuant to Section 733.6175(3), Florida Statutes, "[t]he burden of proof of propriety of the employment and the reasonableness of the compensation shall be upon the personal representative and the person employed." In Rowe, the Florida Supreme Court adopted the federal "lodestar" method for computing reasonable attorney fees in contested proceedings. Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). The first step of the lodestar equation requires the court to determine the number of hours reasonably expended on the
litigation.
18. Pursuant to Section 733.6171(4), Florida Statutes, "[i]n addition to fees for ordinary services, the attorney for the personal representative shall be allowed further reasonable compensation for any extraordinary service.
What is an extraordinary service may vary depending on many factors, including the size of the estate."
Extraordinary services may include, but are not limited to:
a. Proceedings for determination of beneficiaries;
b. Contested claims;
c. Any adversarial proceeding or litigation by or against the estate;
d. Preparation or review of tax returns required to be filed;
e. Sale of real property by the personal representative;
f. Legal advice regarding the homestead status of real property or proceedings involving that status and services related to protected homestead;
g. Involvement in fiduciary, employee, or attorney compensation disputes.
19. In Rowe, the court held that the factors set forth in Disciplinary Rule 2-106(b ), now enumerated in Rule 4-1.5 of the Rules Regulating the Florida Bar, should be utilized in determining reasonable attorney's fees. Fla. Patient's Compensation Fund v. Rowe, 472 So.2d at 1150; Bell v. US.B. Acquisition Co., Inc., 734 So.2d 403, 406 (Fla. 1999) [24 Fla. L. Weekly S220a]. The Rule lists the following factors as relevant to determining a reasonable rate:
(A) the time and labor required, the novelty, complexity, and difficulty of the questions involved,
and the skill requisite to perform the legal service properly;
(B) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
( C) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or
similar nature;
(D) the significance of or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;
(E) the time limitations imposed by the client or by the circumstances and, as between attorney and
client, any additional or special time demands or requests of the attorney by the client;
(F) the nature and length of the professional relationship with the client;
(G) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and
(H) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client's ability to pay rested to any significant degree on the outcome of the representation.
Rules Regulating the Florida Bar R. 4-1.5 (2016).
20. The lodestar process requires the Court to determine the number of hours reasonably expended on the
litigation and the reasonable hourly rate for the biller. Id. The Court determines the lodestar figure by
multiplying the number of hours reasonably expended and the reasonable hourly rate. Id.
21. The second step of the lodestar equation requires the Court to determine a reasonable hourly rate for the
services of the prevailing party's attorney. The number of hours reasonably expended determined in the first step, multiplied by a reasonable hourly rate determined in the second step, produces the lodestar, which is an objective basis for an award of attorney's fees. The opponent of the attorneys' fee has the burden of pointing out with
specificity which hours should be deducted. Brake v. Murphy, 736 So. 2d 745 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1443a], citing Centex-Rooney Construction Co. v. Martin County, 725 So. 2d 1255 (Fla. 4th DCA
1999) [24 Fla. L. Weekly D336a].
22. In addition, when awarding attorney's fees, the Court must consider the time and labor of paralegals "who contributed non-clerical meaningful legal support to the matter involved." Youngblood v. Youngblood, 91 So.3d 190 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1375a].
23. After thoroughly reviewing HPM's time entries, the Court finds that many of the activities billed as paralegal time related to preparing addresses and Fed Ex mailers, processing paperwork to the computer, scheduling hearings, coordinating phone conferences, and similar services which the Court finds to be administrative and secretarial in nature. There was no testimony of legal research or meaningful legal support in the paralegal's billing.
24. Petitioner cites Centex-Rooney Constr. Co. v. Martin County, for the proposition that "[w]here a party
engages separate counsel to represent it on various aspects of an action, attorney's fees to each counsel are not precluded provided that the services rendered are necessary, not duplicative, and the total fee is reasonable." Centex-Rooney Constr. Co. v. Martin County, 725 So. 2d 1255 (Fla. Dist. Ct. App. 4th Dist. Feb. 3, 1999) [24 Fla. L. Weekly D336a], citing Florida Drilling & Sawing v. Fohrman, 635 So. 2d 1054, 1055-56 (Fla. 4th DCA 1994). In Centex, thirty-five attorneys and twenty-nine paralegals represented Martin County during five years of litigation; however, only seventeen of those individuals billed more than thirty hours. The court held that it was reasonable for the county's attorneys to hold one hour monthly "team meetings" to coordinate legal services due to the complexity of the case and in order to avoid duplicated efforts. Additionally, the court held that the county was justified in having several attorneys at trial to cover specific parts of the litigation because of the
technical complexities involved in the case.
25. In response, ARB, points out that there were over 140 conferences or communications between Mr.
Friedman's and Mr. Pratt's offices without demonstrating how this benefited the estate and that three different lawyers worked on the file. According to ARB, the Court needs to be extremely wary of paying fees to so many lawyers for a case with relatively straightforward legal issues and no precedential value. State Farm Florida
Insurance Company v. Alvarez, 175 So.3d 352 (Fla. 3rd DCA 2015) [40 Fla. L. Weekly D2155b].
26. While parties have the right to employ as many lawyers as they choose, the Court will not assess lawyer fees for or against any party for more than one lawyer for a matter in which no more than one lawyer is required.
Alvarez. Id. citing Rathman v. Rathman, 721 So.2d 1218, 1220 (Fla. 5th DCA1998) [24 Fla. L. Weekly D61f]. As such, duplicative time charges by multiple attorneys working on the case are generally non-compensable and the Court cannot award compensation for various extensive conferences between lawyers without any indication of how those conferences advanced the case. Id. Finally, "excessive time spent on simple ministerial tasks such as reviewing documents or filing notices of appearance" is normally not compensable. North Dade Church of God, Inc. v. JM Statewide, Inc., 851 So.2d 194 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1434b] at 196. Nor are duplicative reviews and consultations by numerous attorneys. Id.
27. Pursuant to Section 733.6175( 4), Florida Statutes, any party may offer expert testimony after notice to
interested persons. If expert testimony is offered, a reasonable expert witness fee shall be awarded by the court and paid from the assets of the estate.
28. Under the circumstances and the evidence presented, the Court concludes that Mr. Friedman delegated to HPM many of the responsibilities that were encompassed within the ordinary administration of the estate and fell within his responsibilities as either the personal representative or as attorney for the personal representative, responsibilities for which he is being compensated under the applicable Florida Statutes. To allow compensation to HPM for many of the tasks for which it billed would open the door to the estate (and ultimately the
beneficiaries) being billed twice for the attorneys' fees for the administration of the estate. In other words, the Court does not find it acceptable that Mr. Friedman agree to administer the estate for the statutory fee and then delegate many of the administrative tasks to separate counsel for which he is seeking additional compensation.
29. Moreover, the Court does not find it appropriate to award fees for extraordinary services that are clearly
premature and may never benefit the estate, such as those related to the sale of the real estate. Taken as a whole, together with the yet to be completed work regarding the heirship and the real estate, the Court finds that HPM's presently requested compensation contains amounts relating to work that is duplicative, excessive, and
premature. While Mr. Friedman is free to pay HPM from his portion of his fee award, the Court is not obligated to compel the beneficiaries of the estate to pay HPM for the services that were not extraordinary and should have been performed by Mr. Friedman.
30. For present purposes and based on the above, the Court finds the items to which HPM is presently entitled to compensation are limited to certain, but not all, of the work done in connection with the determination of heirs and in responding to the claim made against the estate. As the Court finds the work done regarding the sale of the property as well as the determination of any benefit to the estate in connection therewith to be premature, the Court does not find it appropriate that HPM be awarded any fees at this time for that work.
31. In analyzing the reasonableness of the attorneys' fees by HPM in connection with that portion of the work the Court has found to be both extraordinary and timely, the Court has analyzed the "Factors to Be Considered in Determining Reasonable Fees and Costs" within Rule 4-1.5(b) of the Florida Bar Rules of Professional Conduct. Based thereon, the Court finds that HPM is entitled to the following fees:
See PDF for Fee Chart
32. The Court finds that HPM is entitled presently to the following costs, not because they represent expenses incurred with respect to extraordinary services, but on the basis that such costs are also recoverable in connection with the ordinary administration of the Estate:
See PDF for fee chart.
33. The court finds Mr. Lee McElroy's hourly rate of$395.00 to be reasonable and a total of 4.0 hours to be reasonable in this matter with the reasonable fee to Mr. McElroy totaling $1,580.00.
compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administration process, and the costs, including attorneys' fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the estate unless the court finds the requested compensation to be
substantially unreasonable."
17. Pursuant to Section 733.6175(3), Florida Statutes, "[t]he burden of proof of propriety of the employment and the reasonableness of the compensation shall be upon the personal representative and the person employed." In Rowe, the Florida Supreme Court adopted the federal "lodestar" method for computing reasonable attorney fees in contested proceedings. Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). The first step of the lodestar equation requires the court to determine the number of hours reasonably expended on the
litigation.
18. Pursuant to Section 733.6171(4), Florida Statutes, "[i]n addition to fees for ordinary services, the attorney for the personal representative shall be allowed further reasonable compensation for any extraordinary service.
What is an extraordinary service may vary depending on many factors, including the size of the estate."
Extraordinary services may include, but are not limited to:
a. Proceedings for determination of beneficiaries;
b. Contested claims;
c. Any adversarial proceeding or litigation by or against the estate;
d. Preparation or review of tax returns required to be filed;
e. Sale of real property by the personal representative;
f. Legal advice regarding the homestead status of real property or proceedings involving that status and services related to protected homestead;
g. Involvement in fiduciary, employee, or attorney compensation disputes.
19. In Rowe, the court held that the factors set forth in Disciplinary Rule 2-106(b ), now enumerated in Rule 4-1.5 of the Rules Regulating the Florida Bar, should be utilized in determining reasonable attorney's fees. Fla. Patient's Compensation Fund v. Rowe, 472 So.2d at 1150; Bell v. US.B. Acquisition Co., Inc., 734 So.2d 403, 406 (Fla. 1999) [24 Fla. L. Weekly S220a]. The Rule lists the following factors as relevant to determining a reasonable rate:
(A) the time and labor required, the novelty, complexity, and difficulty of the questions involved,
and the skill requisite to perform the legal service properly;
(B) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
( C) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or
similar nature;
(D) the significance of or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;
(E) the time limitations imposed by the client or by the circumstances and, as between attorney and
client, any additional or special time demands or requests of the attorney by the client;
(F) the nature and length of the professional relationship with the client;
(G) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and
(H) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client's ability to pay rested to any significant degree on the outcome of the representation.
Rules Regulating the Florida Bar R. 4-1.5 (2016).
20. The lodestar process requires the Court to determine the number of hours reasonably expended on the
litigation and the reasonable hourly rate for the biller. Id. The Court determines the lodestar figure by
multiplying the number of hours reasonably expended and the reasonable hourly rate. Id.
21. The second step of the lodestar equation requires the Court to determine a reasonable hourly rate for the
services of the prevailing party's attorney. The number of hours reasonably expended determined in the first step, multiplied by a reasonable hourly rate determined in the second step, produces the lodestar, which is an objective basis for an award of attorney's fees. The opponent of the attorneys' fee has the burden of pointing out with
specificity which hours should be deducted. Brake v. Murphy, 736 So. 2d 745 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1443a], citing Centex-Rooney Construction Co. v. Martin County, 725 So. 2d 1255 (Fla. 4th DCA
1999) [24 Fla. L. Weekly D336a].
22. In addition, when awarding attorney's fees, the Court must consider the time and labor of paralegals "who contributed non-clerical meaningful legal support to the matter involved." Youngblood v. Youngblood, 91 So.3d 190 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1375a].
23. After thoroughly reviewing HPM's time entries, the Court finds that many of the activities billed as paralegal time related to preparing addresses and Fed Ex mailers, processing paperwork to the computer, scheduling hearings, coordinating phone conferences, and similar services which the Court finds to be administrative and secretarial in nature. There was no testimony of legal research or meaningful legal support in the paralegal's billing.
24. Petitioner cites Centex-Rooney Constr. Co. v. Martin County, for the proposition that "[w]here a party
engages separate counsel to represent it on various aspects of an action, attorney's fees to each counsel are not precluded provided that the services rendered are necessary, not duplicative, and the total fee is reasonable." Centex-Rooney Constr. Co. v. Martin County, 725 So. 2d 1255 (Fla. Dist. Ct. App. 4th Dist. Feb. 3, 1999) [24 Fla. L. Weekly D336a], citing Florida Drilling & Sawing v. Fohrman, 635 So. 2d 1054, 1055-56 (Fla. 4th DCA 1994). In Centex, thirty-five attorneys and twenty-nine paralegals represented Martin County during five years of litigation; however, only seventeen of those individuals billed more than thirty hours. The court held that it was reasonable for the county's attorneys to hold one hour monthly "team meetings" to coordinate legal services due to the complexity of the case and in order to avoid duplicated efforts. Additionally, the court held that the county was justified in having several attorneys at trial to cover specific parts of the litigation because of the
technical complexities involved in the case.
25. In response, ARB, points out that there were over 140 conferences or communications between Mr.
Friedman's and Mr. Pratt's offices without demonstrating how this benefited the estate and that three different lawyers worked on the file. According to ARB, the Court needs to be extremely wary of paying fees to so many lawyers for a case with relatively straightforward legal issues and no precedential value. State Farm Florida
Insurance Company v. Alvarez, 175 So.3d 352 (Fla. 3rd DCA 2015) [40 Fla. L. Weekly D2155b].
26. While parties have the right to employ as many lawyers as they choose, the Court will not assess lawyer fees for or against any party for more than one lawyer for a matter in which no more than one lawyer is required.
Alvarez. Id. citing Rathman v. Rathman, 721 So.2d 1218, 1220 (Fla. 5th DCA1998) [24 Fla. L. Weekly D61f]. As such, duplicative time charges by multiple attorneys working on the case are generally non-compensable and the Court cannot award compensation for various extensive conferences between lawyers without any indication of how those conferences advanced the case. Id. Finally, "excessive time spent on simple ministerial tasks such as reviewing documents or filing notices of appearance" is normally not compensable. North Dade Church of God, Inc. v. JM Statewide, Inc., 851 So.2d 194 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1434b] at 196. Nor are duplicative reviews and consultations by numerous attorneys. Id.
27. Pursuant to Section 733.6175( 4), Florida Statutes, any party may offer expert testimony after notice to
interested persons. If expert testimony is offered, a reasonable expert witness fee shall be awarded by the court and paid from the assets of the estate.
28. Under the circumstances and the evidence presented, the Court concludes that Mr. Friedman delegated to HPM many of the responsibilities that were encompassed within the ordinary administration of the estate and fell within his responsibilities as either the personal representative or as attorney for the personal representative, responsibilities for which he is being compensated under the applicable Florida Statutes. To allow compensation to HPM for many of the tasks for which it billed would open the door to the estate (and ultimately the
beneficiaries) being billed twice for the attorneys' fees for the administration of the estate. In other words, the Court does not find it acceptable that Mr. Friedman agree to administer the estate for the statutory fee and then delegate many of the administrative tasks to separate counsel for which he is seeking additional compensation.
29. Moreover, the Court does not find it appropriate to award fees for extraordinary services that are clearly
premature and may never benefit the estate, such as those related to the sale of the real estate. Taken as a whole, together with the yet to be completed work regarding the heirship and the real estate, the Court finds that HPM's presently requested compensation contains amounts relating to work that is duplicative, excessive, and
premature. While Mr. Friedman is free to pay HPM from his portion of his fee award, the Court is not obligated to compel the beneficiaries of the estate to pay HPM for the services that were not extraordinary and should have been performed by Mr. Friedman.
30. For present purposes and based on the above, the Court finds the items to which HPM is presently entitled to compensation are limited to certain, but not all, of the work done in connection with the determination of heirs and in responding to the claim made against the estate. As the Court finds the work done regarding the sale of the property as well as the determination of any benefit to the estate in connection therewith to be premature, the Court does not find it appropriate that HPM be awarded any fees at this time for that work.
31. In analyzing the reasonableness of the attorneys' fees by HPM in connection with that portion of the work the Court has found to be both extraordinary and timely, the Court has analyzed the "Factors to Be Considered in Determining Reasonable Fees and Costs" within Rule 4-1.5(b) of the Florida Bar Rules of Professional Conduct. Based thereon, the Court finds that HPM is entitled to the following fees:
See PDF for Fee Chart
32. The Court finds that HPM is entitled presently to the following costs, not because they represent expenses incurred with respect to extraordinary services, but on the basis that such costs are also recoverable in connection with the ordinary administration of the Estate:
See PDF for fee chart.
33. The court finds Mr. Lee McElroy's hourly rate of$395.00 to be reasonable and a total of 4.0 hours to be reasonable in this matter with the reasonable fee to Mr. McElroy totaling $1,580.00.
A. The hourly rates and the number of hours expended, as set forth above, are reasonable and the sum of $13,070.25 is a reasonable fee for the services that Huth, Pratt and Milhauser provided to the Estate for the extraordinary services presently found to be compensable as noted above. The foregoing is without prejudice to Huth, Pratt and Milhauser to seek additional compensation for extraordinary services rendered to the estate upon a demonstration that such work is non-duplicative of the work falling with Mr. Friedman's responsibility, timely, reasonable, and of benefit to the estate.
B. The expenses set forth above are reasonable, and Huth, Pratt & Milhauser is entitled to reimbursement of expenses from the estate in the amount of $1,982.17.
C. The hourly rate and the number of hours expended by Mr. McElroy for serving as an expert witness, as set forth above, are reasonable and $1,580.00 is a reasonable fee for the services provided by Mr. McElroy.
D. With respect to Mr. Friedman's requested compensation of 50% for fees for the personal representative and 50% fees as attorney for the personal representative, the Court awards 50% for presumptively reasonable fees as attorney for the personal representative and 50% for presumptively reasonable fees as personal representative.
E. The personal representative, Ronald Friedman, is authorized and directed to pay the aforementioned fees and expenses from the assets of the Estate. The foregoing fees and expenses shall be paid from the court restricted depository.
F. The Court reserves jurisdiction regarding premature and incomplete services upon a showing such services, when complete, are extraordinary and beneficial to the estate.
B. The expenses set forth above are reasonable, and Huth, Pratt & Milhauser is entitled to reimbursement of expenses from the estate in the amount of $1,982.17.
C. The hourly rate and the number of hours expended by Mr. McElroy for serving as an expert witness, as set forth above, are reasonable and $1,580.00 is a reasonable fee for the services provided by Mr. McElroy.
D. With respect to Mr. Friedman's requested compensation of 50% for fees for the personal representative and 50% fees as attorney for the personal representative, the Court awards 50% for presumptively reasonable fees as attorney for the personal representative and 50% for presumptively reasonable fees as personal representative.
E. The personal representative, Ronald Friedman, is authorized and directed to pay the aforementioned fees and expenses from the assets of the Estate. The foregoing fees and expenses shall be paid from the court restricted depository.
F. The Court reserves jurisdiction regarding premature and incomplete services upon a showing such services, when complete, are extraordinary and beneficial to the estate.
FLWSUPP 2512ROBE, Palm Beach County, Re: Attorney’s Fees
Estate of Ginger Eckert Roberts
In this matter, a Palm Beach County Probate Judge found that “activities billed as paralegal time related to preparing addresses and Fed Ex mailers, processing paperwork to the computer, scheduling hearings, coordinating phone conferences, and similar services which the Court finds to be administrative and secretarial in nature. There was no testimony of legal research or meaningful legal support in the paralegals billing.”
Our office pointed out to the Court the attorney for the Personal Representative billed for over 140 conferences or communications with the Personal Representative “without demonstrating how this benefited the estate and that three different lawyers worked on the file.”
“The Court concluded that [the Personal Representative] delegated to [his attorney] many of the responsibilities that were encompassed within the ordinary administration of the estate and fell within his responsibilities as either the personal representative or as attorney for the personal representative, responsibilities for which he is being compensated under the applicable Florida Statute.”