We have for review Bitterman v. Bitterman, 685 So. 2d 861 (Fla. 4th DCA 1996), 1 which expressly and directly conflicts with Williams College v. Bourne, 656 So. 2d 622 (Fla. 5th DCA 1995) (Williams College II), and Williams College v. Bourne, 670 So. 2d 1118 (Fla. 5th DCA 1996) (Williams College III.) We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.
The conflict between Bitterman and the Williams College cases arises out of the application of section 733.617, Florida Statutes (1993), a section of the Probate Code, which was amended by the legislature in 1993. Prior to that time, the compensation for both personal representatives and attorneys for personal representatives was covered by section 733.617. 2 The 1993 amendment created a new section, after which the compensation for personal representatives was covered by section 733.617 and the compensation for attorneys of personal representatives was covered by newly created section 733.6171. In addition, section 733.6171(7) allowed an attorney to recover costs for the time expended by the attorney seeking reasonable compensation for his or her services on behalf of the personal representative (fees on fees). 3
Chapter 93-257, section 18, of the 1993 Laws of Florida, the act which created the amendment, states: "his act shall take effect October 1, 1993, and shall be applicable to all decedents, including settlors of revokable inter vivos trusts, dying on or after that date." Section 733.6171(8) further provides:
This section shall apply to estates in which an order of discharge has not been entered prior to its effective date but not to those estates in which attorney's fees have previously been determined by order of court after notice.
§733.6171(8), Fla. Stat. (1993).
The two district courts are in conflict as to the applicability of the 1993 changes to estates which were pending at the time of the change. The facts of Bitterman, as stated by the district court, are as follows:
Irving Bitterman died on July 21, 1991 leaving an estate in excess of one million dollars. Pursuant to the will, Howard Bitterman and Stephan Bitterman, the decedent's sons, were appointed co-personal representatives of the estate, and were initially jointly represented by John Severson, Esq. From the early stages, the administration of the estate was an embittered conflict among Annette Bitterman, the surviving spouse, Stephan Bitterman, and Howard Bitterman over the interpretation of certain provisions of the decedent's will. In addition, Stephan Bitterman either raised objections, or threatened to object, to items such as his mother's petition for family allowances, her continued use of an automobile titled in the decedent's name, her petition for homestead to obtain title to the home in which she was living, and her retention of certain personal property. Howard Bitterman did not have any objections to the above items and, in fact, thought that his brother was treating his mother unfairly. Due to the brothers' continued disagreements over the administration of the estate, Mr. Severson withdrew based on conflicts, and each hired separate counsel. Howard Bitterman retained Pat Weidenbenner ("Weidenbenner"); Stephan Bitterman retained appellee, Boose, Casey, Ciklin, Lubitz, Martens, McBane & O'Connell ("Boose, Casey").
A. FEES OF ADMINISTRATOR AD LITEM
In June 1992, the brothers were deadlocked with respect to the administration of the estate, and all parties agreed to the probate court's appointment of appellee, Peter Matwiczyk ("Matwiczyk"), an experienced board certified attorney, to serve as administrator ad litem. Matwiczyk retained his law firm, Mettler & Matwiczyk, to act as his counsel in the administration of the estate.
Following his appointment, Matwiczyk met with counsel for all parties to determine each party's respective position and whether settlement was possible. After that first meeting, Matwiczyk concluded that he "was in the middle of a hornet's nest." He therefore determined that the best way to proceed was by filing responsive pleadings to the petitions that had been filed, and scheduling hearings to force the parties to address the issues. Since settlement was clearly not an option, Matwiczyk began to take discovery to determine each party's position on the issues. The discovery process was difficult since there were six or seven different lawyers involved. The difficulty was compounded by Stephan Bitterman's failure to cooperate, which necessitated several motions to compel compliance with discovery requests. Upon realizing "that even the smallest detail was worthy, in the parties' mind, of litigating over," Matwiczyk informed all counsel by letter of his intent to charge for his time as fiduciary, and for his counsel's time. Matwiczyk informed the parties of his intention to charge $225 per hour for his time as administrator ad litem, $175 per hour for attorney Jeffrey Rollins' time, and $200 per hour for attorney Terri Di Pasquale's time. The letter contained the following pertinent language:
If this proposal is not satisfactory to your client and to his brother, I would like each of you to let me know immediately so that I can withdraw as Administrator Ad Litem. I am not going to get myself into a position where I end up in a fee fight with Stephan and Howard over my time, my hourly rates or whether I will be compensated for any time I spend in getting Court approval for my fees.
No one objected to the terms as contained in the correspondence. The record shows that the majority of Matwiczyk's time was spent responding to Stephan Bitterman's attempts to void certain provisions of the will and his endless discovery games as well as in defending himself against Stephan Bitterman's breach of fiduciary duty accusations. Matwiczyk set the case for trial, but on the eve of the trial (October 1992), all but one of the issues were settled; the final issue settled shortly thereafter. The settlement agreement provided, in pertinent part, as follows:
The parties agree that whatever remaining amounts are necessary to resolve and pay the requisite fee claims of each of these law firms against the Estate will be paid from funds which would otherwise be distributed to Stephan and that Stephan shall be personally liable for any remaining sum of money in excess of $143,000 necessary to resolve and pay the proper fee claims of each of these law firms against the Estate. Stephan also agrees that all expenses associated with any negotiation or litigation concerning the full proper amount of the aforementioned legal fees will be paid from funds otherwise distributable to him, in the Estate and that he shall be personally liable for these expenses.
After the settlement, Matwiczyk learned that Stephan Bitterman planned to challenge Matwiczyk's fees. In December 1992, Matwiczyk therefore petitioned the court for discharge of his duties as administrator ad litem on the grounds that, although he had not completed his duties ordered by the court, his continued participation had been subject to the objections of the copersonal representatives. The court granted the motion, and reserved jurisdiction to determine fees at a later date. At the fee hearing, both Matwiczyk's expert and Annette Bitterman's attorney testified that Matwiczyk's actions were not only reasonable in light of the dissension among the parties, but they were instrumental in moving the case toward settlement. The trial court concluded that Matwiczyk and his counsel expended a total of 190.70 hours, and that given the difficult circumstances presented by this case, the fee was reasonable and justified. The court found further, that Matwiczyk had spent a significant amount of time following his discharge in collecting his fee and that of his counsel.[Note 3]
[Note 3:] The record shows that Stephan Bitterman obtained an "eleventh hour" continuance of the first fee hearing and thereafter, in the two months that followed, filed approximately 35 pleadings which necessitated a response from Matwiczyk.
Accordingly, the court determined that, pursuant to section 733.6171, Florida Statutes (1993), said fees are compensable from the estate assets. The court awarded Matwiczyk and his firm $39,308.04 in fees and costs.
B. BOOSE, CASEY'S FEES
In the early stages of the estate administration, Stephan Bitterman hired Boose, Casey to research the effect of Article II of the decedent's will. He also requested that the firm provide research on the propriety of each of Annette Bitterman's petitions, and eventually directed the firm to prepare objections. At the outset, Stephan Bitterman agreed to an hourly rate of $175 for attorney Brian O'Connell's ("O'Connell") services, $65 per hour for paralegal services, $135 per hour for one associate's services, and $155 per hour for another associate's services. The written fee agreement provides that Stephan Bitterman shall not be personally responsible for attorneys' fees for the estate.
In addition to doing the legal research, Boose Casey also represented Stephan Bitterman in the parties' several unsuccessful attempts at settlement. The record shows that while Annette Bitterman and Howard Bitterman suggested that the parties attempt to resolve one issue at a time, Stephan Bitterman, contrary to the firm's advice, insisted on a "global" resolution of the issues and even became so bold as to insist, as a contingency to settlement, that his mother write him into her will so that he could have some control over the money she would take from Irving Bitterman's estate. According to O'Connell, the parties were close to settlement at several times, with each attempt being ultimately thwarted by Stephan Bitterman's interjection of additional demands. At one time or another, Stephan Bitterman even threatened to bring bar complaints against each of the attorneys involved. O'Connell eventually suggested that Stephan Bitterman retain separate counsel to represent him in his capacity as beneficiary, which he did.
Stephan Bitterman became intimately involved with every detail of Boose, Casey's actions on his behalf. In fact, he directed O'Connell to forward all correspondence and pleadings to him (Bitterman) for review. According to O'Connell, on a daily basis, there were telephone calls between his firm and Stephan Bitterman to the point that Stephan Bitterman became involved with every detail. A review of Boose, Casey's phone bill indicates over 350 telephone calls between the firm and Stephan Bitterman in New York. In fact, O'Connell pointed out that Stephan Bitterman often took the liberty of calling O'Connell at his home, in his car, and even when he was on vacation.
In the summer of 1992, after Stephan Bitterman was unable to obtain the result he desired through settlement, he directed the firm to research the possibility of voiding his mother's and his brother's shares under the will, and of voiding certain provisions of the will, including Article II. Although O'Connell did not believe that there was sufficient evidence to suggest that a portion of the probated will was invalid, he nevertheless filed, at Stephan Bitterman's direction, a defense to the will construction petition stating that Article II was invalid. Although O'Connell had informed Stephan Bitterman in writing that he (O'Connell) thought the pleading would be unsuccessful, he stated that he did not think it was frivolous. In that same letter, O'Connell also informed Stephan Bitterman that "the evidence available is not actionable in terms of challenging the will or a portion of it, regardless of any statute of limitations." There was evidence in the record that at one point Stephan Bitterman acknowledged the provision was clear and unambiguous.
Boose, Casey's expert testified that a reasonable hourly rate for O'Connell would range from $175 to $225, and a reasonable hourly rate for his paralegal would range from $65 to $95 per hour. Accordingly, he opined that a reasonable fee for Boose, Casey's work in this case would exceed 76,000.
The court found Boose, Casey's fees to be reasonable and entered a final Judgement awarding the firm $76,542 in attorney's fees, $6,865.81 in costs, and $20,000 for attorney's fees expended collecting their attorney's fees.
1. The district court's opinion addressed two separate appeals, Bitterman v. Bitterman and Bitterman v. Weidenbenner. We have consolidated the two review proceedings for Disposition by one opinion.
2. Section 733.617, Florida Statutes (1991), entitled "Compensation of personal representatives and professionals," states in relevant part: (1) Personal representatives, attorneys, accountants, and appraisers and other agents employed by the personal representative shall be entitled to reasonable compensation. Reasonable compensation may include compensation for the services of the agents or employees of the person seeking compensation and may also include reimbursement of out-of-pocket costs.
3. Section 733.6171(7), Florida Statutes (1993), provides: Court proceedings to determine compensation, if required, are a part of the estate administration process, and the costs, including fees for the personal representative's attorney, shall be determined by the court and paid from the assets of the estate. The court shall direct from which part of the estate they shall be paid.
4. Section 57.105, Florida Statutes (1993), states in relevant part: (1) The court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party; provided, however, that the losing party's's attorney is not personally responsible if he has acted in good faith, based on the representations of his client. If the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the defense, the court shall also award preJudgement interest.