Cook v. Palmer First National Bank & Trust Co. of Sarasota

District Court of Appeal of Florida

Cook v. Palmer First National Bank & Trust Co. of Sarasota

245 So. 2d 694, 1971 Fla. App. LEXIS 6942

CourtDistrict Court of Appeal of Florida

DecidedMarch 10, 1971

DocketNo. 70-624

StatusPublished

Cited by6 cases

This text of 245 So. 2d 694 (Cook v. Palmer First National Bank & Trust Co. of Sarasota) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cook v. Palmer First National Bank & Trust Co. of Sarasota, 245 So. 2d 694, 1971 Fla. App. LEXIS 6942 (Fla. Ct. App. 1971).

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Opinion

MANN, Judge.

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.

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MANN, Judge.

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.

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245 So. 2d 694, 1971 Fla. App. LEXIS 6942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-palmer-first-national-bank-trust-co-of-sarasota-fladistctapp-1971.

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