2D03-4097 / Costello v. Davis

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State: Florida

Court: Florida Southern District Court

Docket No: 2D03-4097

Case Date: 12/29/2004

Plaintiff: 2D03-4097 / Costello

Defendant: Davis

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TAMARA COSTELLO, individually and                                                   )
as Co-Personal Representative of the                                                )
Estate of Scott Davis, deceased,                                                    )
)
Appellant,                                                                          )
                                                                                    )
v.                                                                                  )   Case No. 2D03-4097
                                                                                    )
GARY DAVIS, individually and as                                                     )
Co-Personal Representative of the Estate                                            )
of Scott Davis, deceased; and THE LAW                                               )
OFFICES OF OMAR F. MEDINA, P.A.,                                                    )
)
Appellees.                                                                          )
)
Opinion filed December 29, 2004.
Appeal from the Circuit Court for
Hillsborough County; Sam D.
Pendino, Judge.
Raymond N. Seaford of Law Office of
Ken Ward, P.A., Tampa, for Appellant.
Omar F. Medina of The Law Offices of Omar
F. Medina, P.A., Tampa, for Appellees.
WALLACE, Judge.
Tamara Costello, individually and as co-personal representative of the
estate of Scott Davis, deceased, appeals the trial court's order awarding The Law

Offices of Omar F. Medina, P.A., $50,000 in attorney's fees and $4371.51 in costs for
services rendered in a wrongful death action.   The contingent fee agreement pursuant
to which Mr. Medina claimed entitlement to the fees and costs awarded was signed by
Gary Davis, the other co-personal representative of the estate, but it was never signed
or otherwise ratified by Mrs. Costello.   Because co-personal representatives are
required to act jointly and because Mr. Medina did not have a separate fee agreement
with Mrs. Costello, we reverse the trial court's order to the extent that it awarded Mr.
Medina fees and costs from Mrs. Costello's share of the settlement of the wrongful
death action.   We also hold that Mrs. Costello is entitled to interest on the amount of
fees and costs withheld from her share of the recovery.
Facts and Procedural History
On or about July 9, 2000, Scott Davis and Christopher Lain stayed
overnight at the Odessa home of Jeremiah Faust, a nineteen-year-old friend.   Scott
was also nineteen years old, and Christopher was sixteen.   The home was owned by
Jeremiah's father, Thomas J. Faust, but he was not at home that night.   Following a
series of events not material to the disposition of this appeal, Scott and Christopher
were found dead in the living room of the Faust residence the next day.   Jeremiah
survived the incident.
Scott Davis died intestate.   He was survived by his parents, Mr. Davis and
Mrs. Costello, who are divorced.   Each of the parents employed separate counsel to
represent them on their claims arising from Scott's death.   Mr. Davis was represented
by Omar F. Medina of The Law Offices of Omar F. Medina, P.A.   Raymond N. Seaford
of The Law Office of Ken Ward, P.A., represented Mrs. Costello.
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Mr. Faust had a homeowner's policy of insurance in effect at the time of
the incident.   The limits of liability per occurrence for bodily injury and death were
$300,000.   On June 19, 2001, a little less than one year after the incident, Mr. Faust's
insurance carrier tendered the $300,000 policy limits to the Davis and Lain families
equally in full settlement of all claims.   Neither of the families accepted the offer.
On July 5, 2001, Mr. Davis entered into a contingent fee agreement with
The Law Offices of Omar F. Medina, P.A., for representation in connection with the
wrongful death of Scott Davis.   The agreement provided that Mr. Medina would receive
as compensation for his services 33a% of any recovery up to one million dollars
through the time of filing an answer and 40% of any recovery up to one million dollars
from the time an answer was filed through trial.   Mrs. Costello, who was represented by
Mr. Seaford, was not identified in the agreement, nor did she sign it.   One week later, on
July 12, 2001, Mr. Davis filed an action for the wrongful death of Scott Davis against Mr.
Faust and against a dissolved Florida corporation with which Mr. Faust was associated.
The complaint identified Mr. Davis and Mrs. Costello as the decedent's survivors and
included the following allegation: "Gary Davis is the Personal Representative of the
ESTATE OF SCOTT DAVIS with the probate of the Estate being filed in the Circuit of
Hillsborough County, Florida."
In fact, Mr. Davis had not yet been appointed as the personal representa-
tive of his son's estate either when he signed the contract with Mr. Medina's office or
when the complaint was filed.   Nor would he be the sole personal representative.   Mr.
Davis and Mrs. Costello had filed competing petitions for administration seeking to be
appointed as the personal representative of their son's estate.   On October 1, 2001, Mr.
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Davis and Mrs. Costello resolved their dispute about who would be appointed by
stipulating to the appointment of both of them as co-personal representatives.   On
October 4, 2001, the probate division of the Hillsborough County Circuit Court appointed
Mr. Davis and Mrs. Costello as co-personal representatives of the estate of Scott Davis,
deceased.   Letters of administration issued the same day.   The letters of administration
issued to Mr. Davis and Mrs. Costello included the following pertinent provision affixed
by a rubber stamp:   "Personal Representative is prohibited from entering into any
settlement without prior authorization by the Probate Court.   Copy of these Letters are
required to be filed in the wrongful death proceeding."
Despite the appointment of joint personal representatives, Mr. Medina did
not take steps to have Mrs. Costello, the other co-personal representative, added as a
party plaintiff in the pending wrongful death action.   Mr. Medina did not comply with the
probate court's order to file a copy of the letters of administration in the wrongful death
proceeding.   Counsel for Mr. Faust would subsequently testify that he did not learn until
after the case was settled that Mr. Davis and Mrs. Costello had been appointed as co-
personal representatives or that Mr. Davis was not, as he had previously alleged in his
complaint, the sole personal representative of the estate.
Meanwhile, the wrongful death action filed by Mr. Davis continued its
progress in the trial court.   Both defendants responded to the complaint with motions to
dismiss.   Because these motions were never disposed of, the defendants did not file
answers to the complaint.   Nevertheless, Mr. Medina took discovery and otherwise
investigated the case.   On April 1, 2002, Mr. Faust served a proposal for settlement
pursuant to Florida Rule of Civil Procedure 1.442 to settle the case for $150,000, the
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same amount that had been offered before suit was filed.   The proposal was not
conditioned on court approval of the settlement.   Mr. Medina did not notify Mrs. Costello
or her counsel of the receipt of the proposal for settlement.   They were not aware of the
proposal and did not consent to its acceptance.   Nevertheless, on April 29, 2002, Mr.
Medina served a notice accepting the proposal for settlement on behalf of Mr. Davis as
personal representative.   None of the parties to the wrongful death action petitioned the
court for approval of the settlement.
Mr. Faust's counsel forwarded to Mr. Medina the carrier's check for
$150,000 and a release.   On April 22, 2002, Mr. Davis, acting as "personal representa-
tive of the estate of Scott Davis," executed a document intended to release Mr. Faust
and Jeremiah Faust from all claims in connection with the incident.   On May 7, 2002,
Mr. Medina's office and Mr. Davis, referred to in the document as "administrator of the
estate of Scott Davis," executed a closing statement reflecting the disbursement of the
settlement proceeds as follows:
Total Recovery                                                                               $150,000.00
Attorney's Fees — Law Offices of
Omar F. Medina (40%)                                                                         $ 60,000.00
Total Costs1                                                                                 $             4,371.51
Total Attorney's Fees and Costs                                                              $ 64,371.51
Net to Estate                                                                                $ 85,628.49
Although the closing statement reflects a disbursement of $85,628.49 to the estate of
Scott Davis, the estate did not actually receive any funds because Mr. Davis and Mr.
1    The itemized accounting of the costs attached to the closing statement is
omitted.
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Medina allocated the entire recovery to Mr. Davis and Mrs. Costello in equal shares and
apportioned the fees and costs charged by Mr. Medina against those shares.   Mr.
Medina's fees and costs, amounting to $64,371.51, and Mr. Davis's share, amounting to
$42,814.25 ($85,628.49 ÷ 2 = $42,814.25), were promptly disbursed from the recovery.
Mr. Seaford had sent letters to Mr. Medina on November 18, 2001,
December 11, 2001, and January 23, 2002, requesting information about the status of
the wrongful death action.   Mr. Medina made no written response to this
correspondence.2   On May 14, 2002, shortly after Mr. Davis had settled the case, Mr.
Seaford wrote to Mr. Medina again requesting information about the status of the case.
This time Mr. Medina responded promptly with a letter to Mr. Seaford informing him that
the case had been settled and offering to send a check for Mrs. Costello's share of the
recovery "after payment of fees and costs."   On behalf of Mrs. Costello, Mr. Seaford
objected to the deduction of any fees and costs from her share of the recovery and
demanded payment of $75,000.   After a further exchange of correspondence, Mr.
Medina sent Mr. Seaford a check payable to Mrs. Costello in the amount of $42,814.24,
representing the undisputed portion of Mrs. Costello's share of the recovery.
On July 8, 2002, Mrs. Costello filed her own wrongful death action against
Mr. Faust and Jeremiah Faust.   She alleged in her complaint that she was one of the
co-personal representatives of the estate of Scott Davis, deceased, and she attached to
the complaint a copy of the letters of administration issued to both Mr. Davis and Mrs.
Costello as co-personal representatives.   Alerted by the filing of the second lawsuit that
2    Mr. Medina would subsequently testify that he did respond by leaving "three or
four messages" for Mr. Seaford's employer, Ken Ward.   However, he did not state that
he ever spoke with Mr. Ward.
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something was amiss, counsel for Mr. Faust filed a motion in the prior wrongful death
action filed by Mr. Davis, seeking court approval of the settlement that had already been
concluded.   Mr. Davis joined in this motion.3
The trial court conducted an evidentiary hearing on the motions to approve
the settlement.   Mrs. Costello objected to approval because she had not had an oppor-
tunity to participate and because Mr. Davis had not pursued a claim against Jeremiah
Faust.   The trial court approved the settlement because Mr. Faust had relied to his
detriment upon Mr. Medina's representations that Mr. Davis had the authority to act
alone in matters involving his son's estate, including the acceptance of the proposal for
settlement.   See § 733.615(3), Fla. Stat. (2001).   No one has appealed the trial court's
order approving Mr. Davis's settlement of the wrongful death action.   Therefore, we are
not called upon to decide the propriety of the allocation Mr. Davis made of the recovery
among the estate and the survivors or whether Mr. Faust was entitled to the protection
of section 733.615(3) under the circumstances of this case.
The trial court held a subsequent hearing on Mr. Medina's request for
approval of his attorney's fees and costs.4   Mr. Medina's request was the only one
3    Both parties disregarded the order of the probate court that any motion for
approval of a settlement be filed in the probate division, not the civil division.
4    We note that in settling claims for wrongful death, motions for approval of
attorney's fees and costs for services to the personal representative and survivors
should ordinarily be considered at the same time as the motion for approval of the
settlement.   Neither the court nor the parties are able to assess accurately the
advantages and disadvantages of a proposed settlement without specific information
concerning the amount of any attorney's fees and costs to be paid from the settlement
proceeds and how such fees and costs will be apportioned among the estate and the
survivors.
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before the court for decision because Mr. Seaford did not seek a fee.5   Noting that Mr.
Davis had acted alone in signing the contingent fee agreement, counsel for Mrs.
Costello argued that the agreement was not binding on the estate because both of the
co-personal representatives had not signed it as required by section 733.615(1).   The
trial court rejected this argument, declaring that principles of equity authorized it to rule
that—despite the conceded noncompliance with the statutory command—the contract
nevertheless bound the estate.6   The trial court did reject Mr. Medina's claim for a 40%
contingency fee because the case settled before an answer was filed, but it ordered
that Mr. Medina was entitled to a 33a% contingency fee, amounting to $50,000, and
costs of $4371.51.   Since Mr. Medina had already received a $60,000 fee, the trial court
ordered him to refund the $10,000 overpayment equally to Mr. Davis and Mrs. Costello.
The trial court rejected Mrs. Costello's request for interest on her share of the over-
payment.   Mrs. Costello timely appealed the trial court's order on attorney's fees and
costs.
Analysis
With certain exceptions not applicable here, joint personal representatives
are required to act in concert.7                                                                § 733.615(1); Messina v. Scionti, 406 So. 2d 529, 532
5    Mr. Seaford said that he could not claim a fee "in good conscience" because
"walking into this thing, there was already $150,000 on the table."
6    Although unexpressed, the trial court's evident intent was to apportion the
estate's asserted liability for fees and costs to the shares of the recovery allocated to
Mr. Davis and Mrs. Costello.   § 768.26, Fla. Stat. (2001); Wiggins v. Estate of Wright,
850 So. 2d 444 (Fla. 2003); Catapane v. Catapane (In re Estate of Catapane), 759 So.
2d 9 (Fla. 4th DCA 2000).
7    The Honorable Joseph Nesbitt, a retired judge of the Third District Court of
Appeal, has written an article criticizing the practice of appointing multiple personal
(continued...)
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(Fla. 2d DCA 1981) (construing an earlier version of section 733.615(1)).   The
requirement that joint personal representatives act in concert extends to the employ-
ment of counsel.   Rand v. Giller, 489 So. 2d 796, 797 n.4 (Fla. 3d DCA 1986). It also
applies to the initiation of legal proceedings.   Pearce v. Foster, 454 So. 2d 721 (Fla. 4th
DCA 1984) (declining to reach the merits of appeal filed by one of two co-personal
representatives and relinquishing jurisdiction to trial court for determination of whether
co-personal representative's refusal to join in appeal constituted cause for her removal).
In this case, Mr. Davis had no authority to bind the estate because Mrs.
Costello, the other co-personal representative, did not join in the execution of the
contingent fee agreement with Mr. Medina's office.   § 733.615(1); Rand, 489 So. 2d at
797 n.4.   Mr. Davis's contract with Mr. Medina bound only Mr. Davis, not the estate.
Consequently, Mr. Medina is entitled to have his percentage fee paid from Mr. Davis's
share of the recovery, but not from the estate.   Moreover, Mr. Medina is not entitled to a
fee from Mrs. Costello's portion of the settlement because he did not have a contract
with her.   See R. Regulating Fla. Bar 4-1.5(f)(2); Perez v. George, Hartz, Lundeen,
Flagg & Fulmer, 662 So. 2d 361, 363-64 (Fla. 3d DCA 1995).
Mr. Medina's failure to bind the estate or Mrs. Costello to the contingent
fee agreement is a predicament of Mr. Medina's own making.   Under the circumstances
of this case, there are no principles of equity that would justify awarding him a fee from
7
(...continued)
representatives as inefficient, wasteful, and fraught with potential problems.   See
Joseph Nesbitt, One Personal Representative Is Enough, 54 Fla. B.J. 140 (Feb. 1980).
The facts of this case tend to support Judge Nesbitt's thesis.
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Mrs. Costello's share of the settlement.   On our own initiative,8 we have considered the
common fund rule and find it inapplicable.   See Perez, 662 So. 2d at 364; Adams v.
Montgomery, Searcy & Denney, P.A., 555 So. 2d 957, 958 (Fla. 4th DCA 1990); see
generally Hurley v. Slingerland, 480 So. 2d 104, 107-08 (Fla. 4th DCA 1985).
Relief
Therefore, we reverse the trial court's order to the extent that it awarded
Mr. Medina an attorney's fee from the $75,000 portion of the recovery allocated to Mrs.
Costello.   We also reverse the award of costs from Mrs. Costello's portion.   Finally, we
hold that Mrs. Costello is entitled to interest on the amount of fees and costs withheld
from her portion of the settlement from May 7, 2002, the date of the closing statement.
See Moreno v. Allen, 692 So. 2d 957, 958 (Fla. 3d DCA 1997).
Reversed and remanded to the trial court for further proceedings
consistent with this opinion.
KELLY and VILLANTI, JJ., Concur.
8    The appellees have not submitted an answer brief, even after this court
granted an extension of time in response to a representation made by the appellees'
counsel of record, Mr. Medina, that a brief would be filed on their behalf.   The failure of
an appellee to submit a brief, as this court has stated, "places an undue burden on the
appellate court and reflects an omission of appellee's responsibility to support the trial
court.   If the ruling of the trial court is not worthy of support, then appellee ought to
confess error and join with the appellant in seeking reversal."   Geisler v. Geisler, 397
So. 2d 1216, 1217 n.1 (Fla. 2d DCA 1981).
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