12-00478

FIRST INSERTION
PERSONAL REPRESENTATIVE'S MOTION FOR COMPENSATION, HIS ATTORNEY'S
FEES AND COSTS.
IN THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
IN AND FOR
PINELLAS COUNTY, FLORIDA
PROBATE DIVISION
CASE NO. 08-7537-ES-004
IN RE: THE ESTATE OF
BRIAN SKELLY,
Deceased.
COMES NOW, ROBERT J. JONES, Esquire, Personal Representative and Attorney for Personal Representative of this Estate, and pursuant to Rule 5.355, Florida Probate Code, he files this, his Motion for his reasonable fees, his reasonable attorneys fees and costs associated with administration of the assets and liabilities of the Estate as described below.
Background.
1. This entire probate case has been unusual in the following respects:
A. The decedent died a violent and unexpected death as a result of an automobile accident.
B. There was no testamentary plan.
C. The heirs at law were unprepared, emotionally and by training and disposition to deal with the death of the decedent and with his assets.
D. The heirs at law and other persons interested in the estate did not communicate well with one another, and conflicted, when they did.
E. The heirs at law did not understand the Probate proceeding and its purposes (and still may not, to this day). One of them by preference was appointed as the original Personal Representative.
F. Two of the heirs at law disappeared, including the original Personal Representative. The third heir at law disappeared after she was evicted from the real estate that the decedent jointly owned.
(i.) The undersigned counsel was the only suitable Successor Personal Representative after the disappearance of the original Personal Representative, and he was so appointed.
G. One of the heirs at law disclaimed her interest and has not been heard from, since.
H. One of the heirs at law held possessory interest one of the main assets of the estate as against the other heir(s) and other persons interested in the estate.
I. A person interested in the estate claimed against the holdover tenanting heir for her failure to maintain the property and to insure it and pay its taxes. He claimed under an alleged lease which was merely an oral contract between himself and the decedent.
J. The same interested person was incarcerated and had to deal through an attorney-in-fact for his interests as they were influenced by both the administration of the estate and the holdover tenant.
K. All heirs at law and the interested person were vastly misinformed as to the value of the main asset (the non-homestead real property of the estate), and so misinformed the undersigned. This misinformation delayed proper marketing of the real estate.
L. The real estate market for the main asset of the estate ceased to function and as a result, the market value of the real property of the estate plummeted in value, and could not be sold for any price acceptable to the parties.
M. The holdover tenanting heir at law held the property for nearly three years before she was evicted by the interested person as a result of a partition action initiated by the undersigned and joined by the interested person. She also evaded the listing real estate brokers who tried to market the property, thereby limiting access of brokers or prospective buyers to the house and lots
N. During this period, no rent was paid to the Estate and the Estate bore nearly all expenses for maintaining the real property.
2. When it became apparent that the original Personal Representative had dealt with property of the Estate for his and his sister's benefits and interests, before the creditors had been paid, and when he disappeared, the undersigned attorney had to petition for the removal and replacement of the original Personal Representative.
3. The undersigned attorney, who later became Successor Personal Representative, then made a claim on the bond of the original Personal Representative for the asset sold by the original Personal Representative. This claim was paid to the Estate.
4. The undersigned, as Successor Personal Representative, found that the holdover tenanting heir at law was continuing her occupancy of the real property to the detriment of the Estate and its creditors. So, he commenced a partition action, and he was joined by the incarcerated interest person.
5. The interested person then commenced an eviction action against the holdover tenanting heir at law. The undersigned, as Successor Personal Representative joined this action.
6. In or about October, 2011, the holdover tenanting heir at law vacated the premises of the subject real estate, leaving unpaid a City of St. Petersburg lien, water bill, and electric bill, and the premises in such a condition that it was necessary to cleanup both the real estate and the improvements in order for a realtor to market the same.
7. The interested person through his attorney-in-fact and the undersigned as PR, bore the work and expenses and the negotiations necessary to market and sell the real property.
8. Pursuant to this Court's Order dated June 20, 2011, the subject real property was sold to a third party, at arms-length, through a licensed Florida real estate broker. The sale price of the real estate was $40,000. In October, 2008, the parties informed the undersigned that the property was worth $150,000. In March or April, 2009, the interested person and the undersigned obtained an appraisal of the property, valuing it at $49,000. All persons interested in the Estate were informed of this discrepancy in their perceptions of the value of the real estate.
9. The Estate's expenses associated with administration of the Estate are detailed at Schedule B of the Final Accounting and total $18,722.54, some of which were partially compensated to the Estate under this Court's Order Distributing Proceeds of Partition Sale entered on December 21, 2011. The details of the Order have now been carried out by the escrow agent, STEWART TITLE COMPANY, which made payment that was received on December 30, 2011.
10. The fees of the undersigned are set forth in EXHIBIT “A” hereof.
Fees and costs allowed by law.
11. The undersigned may be paid for both his ordinary and extraordinary services under the Florida Probate Code, secs. 733.617 and 733.6171. The latter statute at subsection (5) provides factors for the Court to consider in determining reasonable compensation. Among these, are the responsibilities and liabilities of the attorney, the complexity of the administration, the expenses of the administration, and the delay in payment of the compensation.
12. For his ordinary services, the undersigned requests the following fees:
As Successor Personal Representative three percent of the Gross Estate administered (See, EXHIBIT “A”) or $3920.00.
As Attorney for the Estate, three percent of the Gross Estate administered (See, EXHIBIT “A”) or $3920.00.
The Successor Personal Representative and his attorney have spent $18,672.54 and expect to spend an additional $100.00 for costs necessary to administer, protect and maintain the estate. Those costs are shown in detail at Schedule B of the Final Accounting to be submitted after the Court's ruling on this Motion. See, Exhibit “B” attached.
13. For his extraordinary services as attorney for the Personal Representative, the undersigned requests $7387.50 as detailed at EXHIBIT “C”.
14. See, Affidavit of Barry M. Steagall, Esquire, as to the reasonableness of the hours and fees requested, attached at EXHIBIT “D”.
15. The Florida Supreme Court in In re: Estate of Platt, 586 So.2d 328 (Fla. 1991) stated that the reasonableness of the attorney fees to be charged in an estate should be calculated by a judicial officer who determines whether the hours spent by the attorney and the hourly rate charged by the attorney appear reasonable in the circumstances.
16. The Second District Court of Appeal held in In re: Estate of Blum, 898 So.2d 1106, (Fla. 2d DCA 2005) that attorney fees for extraordinary work may be awarded by the court upon proper proof that the attorney's services were needed and provided..
Application of law to facts.
17. The priority of payments of Estate assets to the liabilities of the Estate is set forth at sec. 733.707 of the Florida Probate Code.
18. The undersigned as Personal Representative and his attorney has Class 1 priority over the claims of other creditors of the Estate.
Request for Relief.
19. The undersigned requires clarity in the fees and expenses for which he will be compensated, before he pays other creditors from Estate assets.
WHEREFORE, the undersigned Robert J. Jones, Esquire, requests that the court enter an Order Determining Fees and Costs Compensable to the Successor Personal Representative and His Attorney, and finding that the sums of fifteen thousand two hundred twenty seven and 50/100ths dollars ($15,227.50) for fees and eighteen thousand seven hundred seventy-two and 54/100ths dollars ($18,772.54) for costs are reasonable, and granting him such other and further relief as the Court may deem appropriate and just in the circumstances.
Dated: January 12, 2012.
ROBERT J. JONES, Esq.
FBN 949795
Successor Personal Representative
and Attorney for the Personal
Representative and Successor
Personal Representative
P.O. Box 49242
St. Petersburg, FL 33743
(727) 344-6555 tel, (727)345-1368 fax
[email protected]
January 20, 27, 2012 12-00478