5D00-2878 Wiggins v. Wright

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-2878 Wiggins

Case Date: 06/11/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2001

BRITTANY and MARQUIS WIGGINS, Minors, Appellants, v. THE ESTATE OF APRIL BROWN WRIGHT, Appellee. _________________________________/ Opinion filed June 15, 2001 Appeal from the Circuit Court for Orange County, W. Rogers Turner, Judge. Linda L. Schwichtenberg of Linda L. Schwichtenberg, P.A., Orlando, for Appellants. Jackson O. Brownlee, of Beusse, Brownlee, Bowdoin & Wolter, P.A.,Orlando, for Appellee. CASE NO. 5D00-2878

HARRIS, J. Walter C. Wright was the surviving spouse of April Wright. They had two children. April also had two minor children by a previous marriage. While Walter was out of town on business (he was a truck driver), April died while admitted to Orlando Regional Medical Center. When Walter returned, he discovered that an autopsy had been waived by other family members. As "potential personal representative" of his wife's estate, he retained

attorney Nichols on a contingency fee basis

Once he was appointed personal

representative, he signed a new retainer agreement individually and as the parent of his two minor children and as personal representative of the estate. The other minor children retained Schwichtenberg as separate counsel. Through his efforts in obtaining an autopsy and negotiations with the hospital, Nichols was able to settle the malpractice claim for over a million dollars. The court and all parties, including the attorney for the minor children of the deceased's first marriage, approved the settlement. Nichols was awarded his fee pursuant to his contingency

contract by the court. Schwichtenberg also applied for a fee pursuant to her contingency contract with the other minor children, arguing, in effect, that a portion of the fee earned by Nichols should be used to satisfy her clients' obligation to her. Although the court determined that she was entitled to a fee, it held such fee should come from her clients and not the estate and that she should not share in Nichols' fee. This appeal followed and we affirm. Appellant takes the position that Nichols is not entitled to any fee out of her clients' share of the estate because he did not represent them. But Nichols is taking nothing from any portion of the estate that Schwichtenberg's clients are entitled to share. Her clients are entitled to share only in the assets of the estate after legal expenses have been paid. Nichols represented the estate and was hired by the only one having the authority to bind the estate: the personal representative. Through Nichols' efforts, and through his efforts alone, the estate was infused with over a million dollars. The estate had an obligation to pay Nichols for his successful efforts in obtaining the settlement pursuant to its contract. The beneficiaries of the estate, consisting of the surviving spouse and the four 2

children, were entitled to share in the estate only after all estate debts were paid. Although Nichols met the conditions for his fee under his contingency contract with the estate as soon as the settlement was approved and the proceeds were paid over to the estate, as is not uncommon in such cases, he continued his representation by proposing a distribution plan for the estate proceeds to the court. There was no additional fee contemplated for this service.1 The court rejected the plan offered by Nichols and instead ordered that the estate proceeds be divided equally among all beneficiaries.2 Appellant relies most heavily on In re Estate of Catapane , 759 So. 2d 9 (Fla. 4th DCA 2000). Under facts similar to the case at issue, the Fourth District held that the estate's attorney who had successfully recovered in a wrongful death action was not entitled to his full contingency fee because of the conflict among claimants to the estate's proceeds. Because we find that Nichols represented the estate, and not the individual beneficiaries thereto, in handling the wrongful death claim, we agree with the trial court that Nichols earned his contingency fee before any potential conflict arose and is indeed entitled to the total fee agreed to by the estate. We also agree with the lower court that although Schwichtenberg performed a valuable service to her clients by assuring them a greater share of the distribution than they would have otherwise received, this was a service personal to such beneficiaries and should be paid for by them. We believe that is
Perhaps Nichols should have withdrawn from representation of the estate after he was successful in the malpractice action because there was a potential conflict between the personal representative (also a beneficiary) and the other beneficiaries as to how the proceeds from the settlement should be distributed. But even if he had, the estate would have needed continued representation in determining the amount of distribution that should go to each beneficiary and then closing out the estate. If an attorney provides services to the estate, even if it is determined that the claims of the beneficiaries are unequal, should not the attorney receive his full fee from the estate? In any event, Nichols' efforts were made in good faith and since he was not awarded a separate fee for these services, his additional representation seems irrelevant to this appeal. The plan submitted by Nichols and supported by expert testimony was based on the age of the beneficiaries and assumed that the younger the child, the greater the damages the minor would suffer as a consequence of the wrongful death of the mother.
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the intent of section 768.26, Florida Statutes: Attorneys' fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards. Clearly this statute contemplates that the expenses of litigation shall be paid before there is a distribution to anyone and that services performed for an individual beneficiary must be paid by that beneficiary. That is what the lower court ruled and we affirm.

THOMPSON, C.J., concurs. SAWAYA, J., dissents, with opinion.

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SAWAYA, J., dissenting.

Case No. 5D00-2878

The nature of wrongful death actions and the particular facts of this case compel me to respectfully dissent. Under the Wrongful Death Act [the "Act"], a wrongful death action may be brought only by the personal representative for the benefit of all of the decedent's survivors and estate.

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