Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-4126 _____________________________ ROBERT M. ERVIN JR., as Personal Representative of the Estate of Abha Rani Nath, deceased, Appellant/Cross-Appellee, v. SUNITA N. SMITH, LIPIKA NATH BALDING-FRITH, and SUBRATA BOBBY NATH In Re: Estate of Abha Rani Nath, Appellees/Cross-Appellants. _____________________________ On appeal from the Circuit Court for Leon County. Stephen S. Everett, Judge. February 12, 2021 PER CURIAM. This is an appeal and cross-appeal from an order on discharge of personal representative and objections. On the cross-appeal, we affirm without discussion. As to the main appeal, we find that the trial court erred in ruling that the personal representative was collaterally estopped from recovering appellate attorney’s fees from all three beneficiaries pursuant to the parties’ mediated settlement agreement. Accordingly, we reverse that portion of the trial court’s order. I. In September of 2009, after her husband passed away intestate, Abha Rani Nath (“decedent”) inherited the majority of the estate as her husband’s surviving spouse. While the estate was being probated, decedent executed a will and trust leaving all of her assets to her son, Subrata Bobby Nath. The will was prepared and witnessed by the attorney who represented decedent and her son in the ongoing probate case. On October 9, 2010, three weeks after the execution of the will and trust, decedent’s son was driving with decedent when their car left the roadway and flipped. Decedent died in the crash. In February of 2011, decedent’s two daughters, Sunita N. Smith and Lipika Nath Balding-Frith, filed a petition to probate decedent’s estate, believing that their mother had died intestate. Afterwards, decedent’s will was admitted to probate, and decedent’s son was appointed personal representative pursuant to the will. Decedent’s daughters then sought the removal of decedent’s son as personal representative, filed a petition to set aside probate of the will, and filed a complaint contesting the validity of the trust. On April 28, 2011, the trial court removed decedent’s son as personal representative. On May 17, 2011, Robert M. Ervin, Jr., was appointed successor personal representative of decedent’s estate. In October of 2011, decedent’s daughters filed a motion to compel the personal representative to pursue a wrongful death action against decedent’s son. Ultimately, the statute of limitations deadline for the wrongful death claim was missed. In March of 2013, the parties exchanged emails regarding the personal representative’s responsibilities. After clarifying the extent of his authority with the court and meeting with decedent’s daughters, the personal representative initiated a legal action against decedent’s son for neglect and exploitation of decedent. On January 22, 2014, the parties entered a “Mediation Settlement Agreement.” Among other things, the agreement 2 settled which assets each beneficiary was to receive from the estate, including proceeds from the future sale of certain real property. The agreement also included the following provisions: 6. Each party shall pay one-third (1/3) of Robert Ervin, Jr.’s fees and costs associated with his role as personal representative of the Estate of Abha Nath. .... 12. The Parties agree that Robert Ervin, Jr., shall remain as Personal Representative to carry out the duties specified herein. 13. Failure to comply with any provision in this agreement shall entitle any party to the entry of a judgment in their favor plus attorney fees and costs. On July 9, 2015, decedent’s son appealed an order of the trial court enforcing the parties’ mediated settlement agreement. In responding to the appeal, the personal representative sought a prevailing party attorney fee award against decedent’s son pursuant to paragraph 13 of the agreement. Decedent’s daughters also sought a prevailing party attorney fee award against decedent’s son pursuant to the same provision. In December of 2016, this court affirmed the lower court’s order, granted the motions for appellate attorney’s fees filed by the personal representative and decedent’s daughters, and remanded the case back to the trial court to determine the amount of the fee award. Nath v. Estate of Nath, 207 So. 3d 869 (Fla. 1st DCA 2016) (table). Consistent with this mandate, the trial court awarded appellate attorney’s fees in the amount of $29,081.25 against decedent’s son in favor of the personal representative. Decedent’s daughters did not seek an assessment of their attorney fee award against decedent’s son. On April 16, 2019, the personal representative filed a petition for discharge. Pursuant to paragraph 6 of the mediated settlement agreement, the personal representative sought payment of 3 $29,984.56 in fees and costs from each of the three beneficiaries, for a total of $89,953.68. In response, Decedent’s daughters filed their “Objections to Petition for Discharge.” Among other objections, they opposed the “[a]ppellate fees of $29,081.25.” As grounds for their attorney fee objection, they asserted: 21. To that end, the appeal from these proceedings was caused solely by Decedent’s son and Mr. Ervin, Jr. After an additional delay of approximately 1.5 years, Decedent’s son lost the appeal. Mr. Ervin, Jr. initially contended that he was not an appellate lawyer, and had planned to forego participation in the appeal. Defendant’s daughter, Sunita N. Smith, assisted her counsel with drafting appellate briefs on behalf of Decedent’s daughters. There is no evidence that Mr. Ervin, Jr.’s “work” on the appeal assisted in the First DCA’s per curiam affirmance. In any case, Decedent’s daughters are not responsible for the delay and costs of an appeal that they neither initiated nor lost, and thus, Mr. Ervin, Jr. should be seeking the $29,081.25 in appellate fees solely, if at all, from Decedent’s son. 22. It is objectively egregious that the personal representative, Mr. Ervin, Jr., expects to collect 100 cents on the dollar from harmed beneficiaries for his own errors. Mr. Ervin, Jr. has admitted that the $29,081.25 in appellate billings was “duplicated intentionally” for submission to the court. [See Exhibit “C” attached, a true and correct copy of March 2019 e-mail string between Personal Representative, his office, and Decedent’s daughters.] It appears that the successor personal representative failed to clarify this point in Filing #88055169. 23. Moreover, on December 1, 2016, the First DCA granted Mr. Ervin Jr.’s request for attorney’s fees for the appeal against only Decedent’s son. Mr. Ervin Jr.’s attempt to recover here, from Decedent’s daughters, would be double recovery. Thus, there are at least two 4 clear bases to subtract the amount of $29,081.25 from the plenary personal representative fees prior to any division of fees between the three beneficiaries. In August of 2019, the trial court entered an “Order on Petition for Discharge and Objections.” In pertinent part, the order found: 18. On March 5, 2019, this Court, with Judge Frank presiding, entered an Amended Final Judgment Awarding Attorney’s Fees and Costs solely against Bobby Nath to Mr. Ervin in the amount of $29,081.25. This order specifically addressed the First District Court of Appeal’s fee award. Once Judge Frank’s final order was issued, no motion for rehearing, reconsideration, or other motion tolling rendition of the Amended Final Judgment Awarding Attorney’s Fees and Costs was filed by Mr. Ervin to specifically apportion fees and costs among all beneficiaries per the MSA. Thus, the last day within the thirty-day jurisdictional window for appellate review of the March 5, 2019 fees and costs order was April 4, 2019. Once the March 5, 2019 fees and costs order became final, Mr. Ervin lost the ability to further litigate the issue of fees related to the appeal initiated by Bobby Nath. (Citations omitted). Based on the above analysis, the trial court sustained the objection to payment of the personal representative’s appellate fee under paragraph 6 of the mediated settlement agreement and reduced the amount due from each beneficiary to $20,290.81. Later, the trial court denied the personal representative’s motion for rehearing, explaining that the personal representative was collaterally estopped from seeking payment of his appellate fee where he had previously received an appellate fee award against decedent’s son. This appeal and cross-appeal followed. II. On the main appeal, the personal representative disputes the finding that his appellate fee recovery was barred by collateral 5 estoppel or by the election of remedies doctrine. In response, decedent’s daughters aver that they did not object below that the personal representative elected his remedy; rather, they claim that they objected solely on the basis of collateral estoppel and “equity.” Thus, we limit our discussion to an analysis of those two specific issues. A. “Collateral estoppel is applicable where a subsequent cause of action between the same parties is upon a different claim or demand from the first cause of action,” in which case “the judgment of the prior action estops the parties from litigating in the second suit issues or questions common to both causes of action which were actually adjudicated in the prior litigation.” Smith v. Perry, 635 So. 2d 1019, 1020 (Fla. 1st DCA 1994). “[F]or collateral estoppel to bar relitigation of the same issue, ‘an identical issue must be presented in a prior proceeding; the issue must have been a critical and necessary part of the prior determination; there must have been a full and fair opportunity to litigate that issue; the parties in the two proceedings must be identical; and the issues must have been actually litigated.’” Newberry Square Fla. Laundromat, LLC v. Jim’s Coin Laundry & Dry Cleaners, Inc., 296 So. 3d 584, 591 (Fla. 1st DCA 2020) (quoting Holt v. Brown’s Repair Serv., Inc., 780 So. 2d 180, 182 (Fla. 2d DCA 2001)) (emphasis added). The personal representative asserts that the trial court erred in concluding that he was collaterally estopped from seeking payment of his appellate fee where he had previously obtained a prevailing party appellate fee against decedent’s son. In the prior proceeding, the trial court was tasked with determining the proper amount of a prevailing party appellate fee that had been awarded to the personal representative against decedent’s son pursuant to paragraph 13 of the parties’ mediated settlement agreement. Thus, the personal representative’s entitlement to an equal share of his unpaid fees from each of the three beneficiaries under a different paragraph of the agreement—paragraph 6—was not “a critical and necessary part of the prior determination[,]” and was not actually adjudicated in the prior action. See Newberry Square, 296 So. 3d at 591. Because the previous award of prevailing party 6 appellate fees involved a different issue, the trial court erred in concluding that the personal representative was collaterally estopped from seeking his unpaid fees from the three beneficiaries. Id. B. As to their equity argument, decedent’s daughters assert that they should not be responsible for any portion of the personal representative’s appellate fee because (1) the personal representative harmed the estate by failing to file a wrongful death action against decedent’s son before the expiration of the statute of limitations; (2) the personal representative allowed decedent’s son to obtain leverage and prolong the litigation by prematurely distributing estate assets to decedent’s son, which he subsequently dissipated; and (3) they were prevailing parties in the prior appellate litigation and awarded appellate fees from decedent’s son. Generally, equity allows the recovery of attorney’s fees from an estate that has been benefited by the rendering of legal services. Hampton’s Estate v. Fairchild-Fla. Constr. Co., 341 So. 2d 759, 761 (Fla. 1976). Here, the personal representative’s successful defense against decedent’s son’s appeal from the trial court’s order enforcing the parties’ mediated settlement agreement benefited the estate. Although decedent’s daughters complain about the prolonged litigation after the signing of the mediated settlement agreement, that was attributable to decedent’s son, not the personal representative. At the hearing on decedent’s daughters’ objections, the personal representative explained that he distributed assets to decedent’s son as required by the mediated settlement agreement. He further explained that he issued a report concluding that a wrongful death suit against decedent’s son was not viable after consulting a number of personal injury attorneys. In short, there was no equitable basis to deny appellate fees to the personal representative that he was otherwise entitled to under the mediated settlement agreement, and no equitable basis was found by the trial court. While decedent’s daughters assert that they should not be responsible for any portion of the appellate 7 fees that their brother was ordered to pay, their contractual obligation to pay those fees under paragraph 6 was not negated by the prior unsatisfied award of those fees under paragraph 13. III. Accordingly, the trial court erred in finding that the personal representative was collaterally estopped from recovering his appellate fees from the three beneficiaries pursuant to paragraph 6 of the parties’ mediated settlement agreement. Therefore, we reverse and remand with directions that the court authorize the personal representative to recover his appellate fees from the three beneficiaries. We affirm as to the cross-appeal. AFFIRMED in part; REVERSED in part; and REMANDED. RAY, C.J., and OSTERHAUS and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Robert M. Ervin Jr. of Ervin, Kitchen & Ervin, Tallahassee, for Appellant/Cross-Appellee. Sunita N. Smith, Tallahassee, for Appellees/Cross-Appellants. 8