IN RE ESTATE OF ROBERT O. COOK, DECEASED. EULALIE S. COOK, APPELLANT,
v.
PALMER FIRST NATIONAL BANK AND TRUST COMPANY OF SARASOTA, APPELLEE
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Florida appellate court affirmed that an order fixing attorney's fees in probate is a final appealable order, and that a probate estate beneficiary cannot vacate an attorney's fee order she previously consented to based on a claimed mistake of judgment more than a year after payment.
An order fixing attorney's fees in a probate proceeding is final and appealable, and a party cannot vacate such an order based on mistake of judgment after consenting to and paying the fees.
[1] An order fixing attorney's fees in a probate proceeding is a final and appealable order, notwithstanding that it may not be the last such order entered during estate admi…
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Join FLexlaw to unlock all legal intelligence“probate proceedings differ from ordinary litigation in that the rights of outside parties are from time to time determined and orders entered in the course of administration result in payment, or the necessity for filing suit, whereas the ordinary action involves the same parties throughout and a single appeal from final judgment is appropriate”
Explaining why attorney's fee orders in probate are appealable as final orders despite potentially not being the last such order in an estate
Mrs. Cook, a beneficiary in her deceased husband's estate, sought to vacate an order fixing attorney's fees that she had previously consented to, clai…
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An order fixing attorney’s fees in a probate proceeding is “final” in the sense that it is an appealable order although it may not be the last such order in an estate. Fla. P&GR 5.100. It is apparent upon reflection that probate proceedings differ from ordinary litigation in that the rights of outside parties are from time to time determined and orders entered in the course of administration result in payment, or the necessity for filing suit, whereas the ordinary action involves the same parties throughout and a single appeal from final judgment is appropriate.
The order appealed from here is correct for other reasons. Mrs. Cook attempted to vacate an order fixing attorney’s fees, to which she had consented, based on the minimum fee schedule of the Sarasota County Bar Association — which did not bind the county judge — more than a year after they were fixed and paid. She contends that they were paid through “mistake.” If so, it was the sort of mistake of judgment all of us make and which the law does not allow us to contest on the grounds shown here. There was no “mistake” in any legal sense. The matter was settled when she consented to the payment of the fee and it was paid and she filed her accounting noting its payment and time —much more time than Rule 1.540, Fla. RCP, 31 F.S.A. would allow — went by. See Smoak v. Graham, Fla.1964, 167 So.2d 559.
Affirmed.
PIERCE, C. J., and McNULTY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In re the Est. OF Rose Bierman, 587 So. 2d 1163 (Fla. 4th DCA 1991)…widow was the sole owner thereof); Val Bostwick v. Cowan's Estate, 326 So. 2d 454 (Fla. 1st DCA 1976) (order which approved settlement agreement between parties and dismissed with prejudice, petition to revoke probate); In [*1166] re Cook’s Estate, 245 So. 2d 694 (Fla. 2d DCA 1971) (order fixing attorney’s fees in probate proceeding).…
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The Heirs OF the Est. OF Dorothy O. Waldon v. Rotella, 427 So. 2d 261 (Fla. 5th DCA 1983)…expert witness fee. The heirs filed a notice of appeal from this order, which this court recognizes as a “final” order for appeal purposes. See Fla. R.P. & G.P. 5.100; In re Estate of Beeman, 391 So. 2d 276 (Fla. 4th DCA 1980); In re Estate of Cook, 245 So. 2d 694 (Fla. 2d DCA 1971). On August 27, 1982, Rotella filed a motion asking the court to authorize the appointment of a realtor to sell the deceased’s home, which is the only remaining asset of the estate, in order to pay the attorney’s fee. The heirs fi…
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Rehman v. Est. OF George L. Frye, Jr., 692 So. 2d 956 (Fla. 5th DCA 1997)…med final and may, as a matter of right, be appealed to the appropriate district court of appeal, ... In this case, further judicial labor is required to determine the amount of attorneys’ fees which should be awarded. Compare In re Estate of Cook, 245 So. 2d 694 (Fla. 2d DCA 1971). Accordingly, we dismiss this appeal, without prejudice to appeal from any future order awarding attorneys’ fees. The appellant’s motion to review the probate court’s denial of stay pending review is moot, and thus it is denied.…
Authorities Cited
- Smoak v. Graham, 167 So. 2d 559 (Fla. 1964)