Opinion
No. 98-0403.
Opinion filed May 19, 1999.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John D. Wessel, Judge; L.T. Case No. CP 95-20 IY.
Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, Cohen McIntyre, P.A., Fort Lauderdale, for appellant.
Jerald C. Cantor of Engelberg, Cantor Leone, P.A., Hollywood, for appellee.
ON MOTIONS FOR CLARIFICATION
Appellant and appellee have both requested clarification on the issue of damages which the estate may claim against the appellee on remand. In its order, the trial court deducted only $10,000 for work not yet completed. As an issue on appeal, appellant claimed that the estate had damages which also included: 1) fees paid for work performed by the personal representative; 2) fees paid for services to the beneficiaries' attorney to fight any fee request by the co-personal representative; and 3) attorney's fees incurred in the charging lien proceedings and the appellate fees incurred in the previous appeal. In our initial opinion, we addressed only the first claim and not the remaining two.
With respect to the fees paid for services to the beneficiaries' attorney to contest the co-personal representative's possible fee request, there is nothing in the record to suggest that the co-personal representative ever requested a higher fee. Moreover, appellant has cited no law to convince us that appellee somehow violated his duty to the personal representative by advising the co-personal representative, whom the appellee also represented, that he may be entitled to a higher fee.
As to the fees paid with respect to the litigation over appellee's charging lien, the original final judgment required each party to bear its own fees and costs. Since appellant did not raise this in the prior appeal, the issue is foreclosed. With respect to the estate's appellate fees from the first appeal, those do not generally constitute recoverable damages. In Bidon v. Department of Professional Regulation, Florida Real Estate Commission, 596 So.2d 450, 452 (Fla. 1992), the supreme court stated:
[a]ctual or compensatory damages are those amounts necessary to compensate adequately an injured party for losses sustained as the result of a defendant's wrongful or negligent actions. However, the general rule is that attorney's fees incurred while prosecuting or defending a claim are not recoverable in the absence of a statute or contractual agreement authorizing their recovery.
(citations omitted). Appellant has not provided us with any authority showing that such fees are awardable as damages.
Appellant also claims that he should have received an evidentiary hearing on these issues. However, based upon our resolution, he is entitled to a hearing only on the claim for fees paid for work he performed as personal representative.
TAYLOR, J., and OWEN, WILLIAM C., JR., Senior Judge, concur.