In two consolidated cases, Van Vechten v. Anyzeski, 2015 Fla. App. LEXIS 722 (Fla. 4th DCA 2015), the Fourth District Court of Appeals of Florida (the “Fourth DCA”) held that a beneficiary’s estate waived its objection to the trustee’s alleged inadequate pleading of an entitlement to attorney’s fees when it entered into a pretrial stipulation that presented the issue of whether any party was entitled to the recovery of attorney’s fees and costs pursuant to Fla. Stat. § 736.1005, § 736.1006 and § 736.1007.
The decedent, Nicola H. Amey, (“decedent”) created a trust which originally provided that, upon the decedent’s death, the trustee was to distribute a life estate in the decedent’s real property in addition to $100,000 to the beneficiary. Afterward, decedent amended the trust to state that upon the decedent’s death, the trustee was to distribute the decedent’s real property to the trustee in her individual capacity, and that the trustee was to distribute $25,000 to the beneficiary. The trustee opened the decedent’s estate after the decedent’s death and served notice of the decedent’s amended trust. The beneficiary did not initially contest the reduction of distribution in the amended trust and served discovery requests upon the trustee. The discovery requests sought information which appeared to be regarding the trust amendment’s reduction of the beneficiary’s distribution.
The decedent’s trustee, Lowell Amey Van Vechten, (“trustee”) appealed from two probate court orders: an order denying the trustee’s ore tenus motion for attorney’s fees after she prevailed on the beneficiary’s petition to revoke the decedent’s trust amendment and an order mandating a distribution from the trust to the beneficiary’s estate without offsetting the trustee’s attorney’s fees. The trustee argued first, that the court erred in finding she did not adequately plead an entitlement to attorney’s fees and second, that it was error to find that the beneficiary’s estate did not waive its objection to her alleged inadequate pleading of an entitlement to attorney’s fees.
The Fourth DCA agreed with the trustee’s second argument and reversed the lower court on this issue, and as a result did not reach the trustee’s first argument. The trustee’s answer to the second amended petition sought attorney’s fees and costs “pursuant to the inherent authority of [the] Court and Florida Statute § 57.105.” The stipulation that the trustee entered into indicated that the estate had notice that the trustee was claiming an entitlement to attorney’s fees, but “under the proper basis of” Chapter 736, Fla. Stat. The Fourth DCA held that the beneficiary’s estate waived its objection to the trustee’s alleged inadequate pleading of an entitlement to attorney’s fees. It further observed, after referencing the holding in Stockman v. Downs, 573 So.2d 835 (Fla. 1991) that a claim for attorney’s fees whether based on statute or contract must be pled and a failure to do so is a waiver of the claim, noted the exception in Stockman v. Downs “[w]here a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.” As such, the Fourth DCA ruled that the lower court erred in compelling the trustee to pay the $25,000 devise to the beneficiary’s estate without considering the trustee’s attorney’s fees claim. It further noted that the lower court had the discretion to charge the trustee’s attorney’s fees, if her claim was successful, against the beneficiary’s devise.
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