Phipps v. Estate of Burdine

586 So. 2d 381, 1991 Fla. App. LEXIS 7732, 1991 WL 148348
CourtDistrict Court of Appeal of Florida
DecidedAugust 8, 1991
DocketNo. 90-2
StatusPublished
Cited by1 cases

This text of 586 So. 2d 381 (Phipps v. Estate of Burdine) 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.

Bluebook
Phipps v. Estate of Burdine, 586 So. 2d 381, 1991 Fla. App. LEXIS 7732, 1991 WL 148348 (Fla. Ct. App. 1991).

Opinion

ON MOTION FOR REHEARING

DAUKSCH, Judge.

We withdraw the previously published opinion in this matter and substitute the following in its stead.

This is an appeal from an order granting co-personal representative Thomas R. Mick-ler, Jr., personal representative’s fees in the amount of $140,000 and the attorney for the personal representative, Upchurch, Bailey and Upchurch, P.A., attorney’s fees in the amount of $50,000. We reverse on the authority of In re Estate of Platt, 586 So.2d 328 (Fla.1991).

Patricia Burdine died on July 13, 1986 and her will was admitted to probate on August 6, 1986. Her estate primarily consisted of Federated Department Store stock valued at $5.8 million. Under the terms of her will, several specific bequests were made to named beneficiaries and the residual estate was divided in four equal portions. Two portions went to her sister, appellant Zada Dutton Burdine Phipps, one to her half-brother, and one to the National Institute of Mental Health (Institute). Thomas R. Mickler, Jr. (Mickler) and Barnett Banks Trust Company (Barnett) were appointed as co-personal representatives. Mickler was not a lawyer so any legal matters concerning the estate were taken to the law firm of Upchurch, Bailey and Upchurch (Upchurch). The administration of the estate proceeded and ran very smoothly despite its size. In fact, the fee dispute which is the subject of this appeal was the first “novel question” in the probate administration.

On March 23, 1989, Burdine and Mickler filed a petition for discharge. An attached schedule showed the proposed compensation for services:

[383]*383Mickler $150,000
Barnett $150,000
Upchurch $ 50,000

Appellant Phipps filed an objection to the compensation paid and proposed to be paid. She challenged the reasonableness of compensation to be paid to Mickler and the Upchurch firm, but made no objection to Barnett’s fee. The Institute also filed a petition to review compensation, challenging Mickler’s fee, but not the Upchurch or Barnett fees.

An evidentiary hearing was held, the trial court denied both petitions, and appellant Phipps filed this appeal.

CO-PERSONAL REPRESENTATIVE AWARD

We find the trial court abused its discretion in awarding a fee of $140,000 to Mickler based on the evidence presented. Personal representatives are, of course, entitled to reasonable compensation.1 Section 733.617, Fla.Stat. (1987). The, trial court found that the award to Mickler was justified based upon the fee customarily charged in the locality for similar services, the nature and value of the assets of the estate, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person. Sections 733.617(l)(a), (c) and (d), Fla.Stat. (1987). Also, the trial court said that the award to Mickler was justified based upon the nature and length of the professional relationship with the decedent. Section 733.617(l)(f), Fla.Stat. (1987). We do not believe this award can be justified based on any of these factors.

With respect to the nature and value of the assets of the estate, the amount of income earned by the estate and the responsibilities and potential liabilities assumed by the person and also the results obtained, we note that the estate, which was valued at $5,898,816.44, was under administration during the stock market decline of October 1987. At the same time, Federated was the object of a leveraged buy-out by Campeau. It was extensively argued below that Mickler was greatly exposed to liability for any breach of his fiduciary duty in the management of the estate assets. Section 733.615, Florida Statutes (1987) provides that when joint personal representatives are appointed, as here, concurrence is “required on all acts connected with the administration and distribution of the estate.” We find Mickler’s liability potential to be quite limited actually. While section 733.609 provides that “[i]f the exercise of power concerning the estate is improper or in bad faith the personal representative is liable to interested persons for damage or loss resulting from a breach of his fiduciary duty,” section 733.619(2) further provides “[a] personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.” It was undisputed below that Mickler had no expertise in the stock market area and that Mickler relied exclusively on Barnett’s expertise both in management of and sales from the stock portfolio and in the preparation of the federal tax return.

With respect to the nature and length of the professional relationship with the decedent, Mickler testified he took a more assertive and guiding role in managing the [384]*384decedent’s affairs for the period between his father’s death in 1985 and Patricia Bur-dine's death in 1986. Mickler’s father was the decedent’s attorney and business manager from 1947 until his death in 1985. When Mickler Sr. became incapacitated two or three years before his death, Mickler Jr. took over the management of Patricia Bur-dine’s affairs. His responsibilities included making bank deposits, sending notes and flowers to friends and relatives and making certain that pets were given their proper annual shots. For these services, the Mick-lers were paid $4,000 quarterly. But Mick-ler testified he did not begin actually working for the decedent until his father died on December 5, 1985, and the professional relationship between the decedent and Mick-ler was short in time.

With respect to the time and labor involved, Mickler testified he spent fifty to one hundred hours initially organizing the estate when the decedent died in 1986, and then during the following years spent four to five hours a week dealing with estate matters. Mickler testified the four to five hours a week of labor consisted of reviewing and signing financial documents produced by Barnett. When necessary, he called Barnett to request explanations. However, we find an award of this size to be unsupported by the record. Indeed, the trial court here made no calculation of “the number of hours reasonably expended in providing the service.” Platt, 586 So.2d at 333.

It seems clear from the testimony below that Mickler set his fee and requested his compensation based solely on the amount of the fee requested by Barnett and not upon the reasonable value of his services. Mickler’s expert on probate practice testified, “I look at it this way, $150,000 there is no qualm with that fee to the bank, there shouldn’t be any qualm to the other side.” Interestingly, while this same expert testified he had never actually recommended an individual co-personal representative charge the same as an institutional co-personal representative, he testified it was done. And, while Barnett’s fee — which is unchallenged in these proceedings — was apparently based on its published fee schedule, which in turn was based upon a percentage of the value of the estate, we note the supreme court in Platt rejected the argument that

percentage fees must be found appropriate in this instance because they are the only basis upon which fees are customarily charged for those services in this community.

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Bluebook (online)
586 So. 2d 381, 1991 Fla. App. LEXIS 7732, 1991 WL 148348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phipps-v-estate-of-burdine-fladistctapp-1991.