ESTATE OF REONTRE'YH ALONZAE POUNDS v. MILLER & JACOBS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ESTATE OF REONTRE’YH ALONZAE POUNDS,

Appellant,

v.

MILLER & JACOBS, P.A.,

Appellee.

No. 4D21-1362

[January 5, 2022]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Laura Johnson, Judge; L.T. Case No.

502020CP004408XXXXMB.

Mallorye G. Cunningham of the Law Office of Mallorye G. Cunningham,

P.A., West Palm Beach, for appellant.

Mark J. Miller of Miller & Jacobs, Pompano Beach, for appellee.

GROSS, J.

On July 17, 2020, Reontre’yh Pounds died in a motor vehicle accident.

He died intestate and had no surviving spouse. His sole heir was his minor

child. D’Vaunyia Greenland is the child’s mother. Tijuana Pounds is the

decedent’s mother.

The circuit court litigation arose from a dispute over the proceeds of a

wrongful death settlement. We reverse the order of the circuit court that

attempted to resolve the case, and we remand for further proceedings.

The Decedent’s Mother’s Contingency Fee Agreement

with Miller & Jacobs

Eleven days after the accident, Pounds entered into a contingency fee

agreement with the law firm of Miller & Jacobs to prosecute a wrongful

death claim. She authorized Miller & Jacobs to investigate, negotiate, and

resolve the matter on behalf of the decedent’s Estate, which had not yet

been opened.

Greenland’s Contingency Fee Agreement with Attorney Cunningham

Thirteen days after the accident, Greenland entered into a contingency

fee agreement with the Law Office of Mallorye Cunningham to prosecute a

wrongful death claim. Cunningham sent a letter to GEICO requesting

insurance coverage information, but the record does not show that she

took other actions to pursue the wrongful death claim.

Miller & Jacobs Obtains $145,000 in Settlement Proceeds

By mid-September 2020, Miller & Jacobs had obtained the bodily injury

policy limits from the insurers of four separate tortfeasors, recovering a

total of $145,000 in settlement proceeds on behalf of the Estate. The funds

were deposited into the firm’s trust account.

Greenland’s Petition for Administration and

Appointment as Personal Representative

On September 28, 2020, Greenland, represented by Cunningham, filed

a petition for administration of the Estate, alleging that no person had

equal or higher preference than Greenland to be appointed personal

representative.

The trial court issued letters of administration and appointed

Greenland as personal representative.

Two days after Greenland’s appointment, Cunningham sent a demand

letter to Miller & Jacobs, claiming that the law firm lacked the legal

authority to represent the Estate because the personal representative of

the Estate did not sign a written contingency agreement for the firm’s

services. Cunningham further claimed that any funds which Miller &

Jacobs collected from the insurance companies on the Estate’s behalf were

obtained by negligent misrepresentation. She demanded that Miller &

Jacobs release the entire $145,000 in settlement proceeds. Miller &

Jacobs rejected the demand.

Greenland’s Petition for Relinquishment of Settlement Proceeds

Greenland, as personal representative of the Estate, petitioned the

circuit court for an order requiring Miller & Jacobs to relinquish the

settlement proceeds to the Estate or deposit the money into the court

registry. Citing Florida Rule of Professional Conduct 4-1.5(f)(2), Greenland

asserted that Miller & Jacobs “should not participate in any legal fees”

because she never signed any contingency agreement with the firm to

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represent the Estate, despite multiple emails from the firm requesting her

to sign such an agreement. She alleged that Pounds entered into a

contingency contract with Miller & Jacobs without her knowledge and

consent.

Pounds responded in opposition to Greenland’s petition for

relinquishment of the settlement proceeds, and moved for a determination

of her counsel’s entitlement to attorney’s fees and costs. Pounds alleged

that she had the intent to serve as personal representative of the Estate

when she executed the written retainer agreement with Miller & Jacobs.

Relying upon Cooper v. Ford & Sinclair, P.A., 888 So. 2d 683 (Fla. 4th DCA

2004), Pounds argued that, as a prospective personal representative, she

was “able to execute a contingency fee agreement on behalf of the Estate

prior to the [E]state being opened, so long as the Estate would have been

solely benefited from the resulting settlement obtained by [Miller &

Jacobs], and no settlement proceeds would be distributed to [her].”

Pounds further argued that it would be unjust enrichment to award

Cunningham any portion of the contingency fee, because it had been

earned by the efforts of Miller & Jacobs.

Pounds’s Motions to Set Aside Greenland’s Appointment

Meanwhile, Pounds moved to set aside Greenland’s appointment as

personal representative and to revoke the letters of administration. She

alleged that she told Greenland of her preference to serve as personal

representative for her late son’s Estate, but that Greenland went behind

her back and petitioned the court for appointment as personal

representative without providing any notice to her.

The circuit court denied Pounds’s motion without prejudice, as formal

notice of the motion was not provided to Greenland.

Pounds then moved to revoke Greenland’s appointment and to appoint

Pounds as personal representative, raising similar grounds as the original

motion to set aside Greenland’s appointment. Pounds alleged that she

was best suited to serve as personal representative and that Greenland

had not been appointed as the guardian of the minor child’s property.

Greenland received formal notice of this motion, which is still pending in

the circuit court.

Hearing on the Petition for Relinquishment of Settlement Proceeds

The circuit court held a non-evidentiary hearing on Greenland’s petition

for relinquishment of the settlement proceeds. The lawyers on both sides

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made numerous unsworn factual assertions. The two sides presented very

different versions of whether Greenland acquiesced to Miller & Jacobs’s

entry into the case. However, Greenland’s counsel acknowledged that a

guardianship had not yet been established for the property of the minor

child.

Order on Appeal

Following the hearing, the trial court entered an order denying in part

Greenland’s petition for relinquishment of the settlement proceeds. The

court found that Miller & Jacobs was operating in good faith and was

lawfully retained pursuant to a written contingency fee contract with

Pounds, who intended to serve as personal representative of the Estate.

The court further found that prior to the court’s appointment of a personal

representative, Miller & Jacobs procured a $145,000 benefit for the Estate.

Concluding that Cooper was directly on point, the court determined

that: (1) Miller & Jacobs was entitled to its contingency fee of $48,285

because “the contingency contract upon which the representation was

based has been met”; and (2) Pounds was entitled to 3% of the net benefit

of the settlement proceeds for her participation in procuring a benefit to

the Estate prior to the court’s appointment of a personal representative.

This appeal ensued.

Was Greenland Properly Appointed as Personal Representative?

As a threshold matter, the Estate argues that Greenland was properly

appointed as personal representative. But the trial court has not yet

definitively ruled on that issue, as Pounds’s motion to revoke the letters of

administration and set aside Greenland’s appointment is still pending.

Generally, “no notice need be given of the petition for administration or

the issuance of letters when it appears that the petitioner is entitled to

preference of appointment as personal representative.” Fla. Prob. R.

5.201(a). However, “[b]efore letters shall be issued to any person who is

not entitled to preference, formal notice must be served on all known

persons qualified to act as personal representative and entitled to

preference equal to or greater than the applicant, unless those entitled to

preference waive it in writing.” Fla. Prob. R. 5.201(b).

Here, the issue of whether the letters of administration were properly

issued turns on whether Greenland had preference over Pounds to serve

as personal representative.

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Section 733.301(1)(b), Florida Statutes (2020), provides that the

following order of preference shall be observed in granting letters of

administration:

(b) In intestate estates:

1. The surviving spouse.

2. The person selected by a majority in interest of the heirs.

3. The heir nearest in degree. If more than one applies, the

court may select the one best qualified.

Furthermore, “[a] guardian of the property of a ward who if competent

would be entitled to appointment as, or to select, the personal

representative may exercise the right to select the personal

representative.” § 733.301(2), Fla. Stat. (2020).

A “guardian of the property of a ward” is not equivalent to a “natural

guardian.” In re Estate of Fisher, 503 So. 2d 962, 964 (Fla. 1st DCA 1987).

“Except to the extent provided in Section 744.301, Florida Statutes, a

natural guardian is entitled to the charge only of the person, not of the

estate of the ward.” Id. Thus, in Fisher, the court held that the unmarried

mother of the decedent’s son, having never been appointed as “guardian

of the property” of the child, was not entitled to exercise the right to select

the personal representative under section 733.301, even though she was

the “natural guardian” of the child. 1 Id.

In this case, the minor child is the decedent’s only heir. Although

Greenland is the natural guardian of the decedent’s minor child, she has

never been appointed as “guardian of the property” of the child and thus

is not entitled to exercise the right to select the personal representative

under section 733.301(2). Accordingly, the Estate is incorrect to argue

that Greenland was the “apparent” or “statutorily preferred” personal

representative.

Because no “guardian of the property” of the minor child had been

appointed at the time Greenland became the personal representative,

1We note that, in Fisher, the mother of the decedent’s son was herself a minor

when the decedent’s mother was appointed as personal representative and thus

was not entitled to preference over the decedent’s mother at the time of the initial

appointment. Id.

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neither Greenland nor Pounds currently has any preference over the other

to serve as personal representative.

Pounds’s motion to revoke letters of administration is still pending, and

the circuit court still needs to resolve who will serve as personal

representative. As explained below, the determination of who will serve as

personal representative could affect the validity of Pounds’s contingency

fee agreement with Miller & Jacobs.

The Validity of the Miller & Jacobs Contingency Fee Agreement

To determine the validity of Pounds’s contingency fee agreement with

Miller & Jacobs, we examine (1) the interplay of the Florida Bar Rules with

the Florida Probate Code, and (2) the application of the case upon which

the circuit court relied, Cooper v. Ford & Sinclair P.A., to this case.

“Any attorney who has rendered services to an estate may be awarded

reasonable compensation from the estate.” § 733.106(3), Fla. Stat. (2020).

The Florida Probate Code anticipates valid negotiations of a wrongful death

claim prior to court involvement. Berges v. Infinity Ins. Co., 896 So. 2d

665, 674 (Fla. 2004). “Specifically, the legal acts of a personal

representative relate back after court appointment, thereby validating the

previous acts of the personal representative on behalf of the estate. Thus,

the statutory schemes governing both minor and estate claims

contemplate the completion of settlement negotiations prior to court

approval.” Id. at 675 (internal citations omitted).

The relation-back doctrine is codified in section 733.601, Florida

Statutes (2020), which governs the time of accrual of the powers and

duties of a personal representative:

The duties and powers of a personal representative commence

upon appointment. The powers of a personal representative

relate back in time to give acts by the person appointed,

occurring before appointment and beneficial to the estate, the

same effect as those occurring after appointment. A personal

representative may ratify and accept acts on behalf of the

estate done by others when the acts would have been proper

for a personal representative.

Thus, under section 733.601, acts occurring before appointment of the

personal representative can be validated in either of two ways: (1) the

personal representative’s own acts, occurring before appointment and

beneficial to the estate, will relate back and have the same effect as those

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occurring after appointment; or (2) the acts on behalf of the estate done by

others may be ratified and accepted by the personal representative when

the acts would have been proper for a personal representative.

This case also implicates Florida Rule of Professional Conduct 4-1.5(f),

which requires that every lawyer who enters into a contingency fee

agreement “must do so only where the fee arrangement is reduced to a

written contract, signed by the client, and by a lawyer for the lawyer or for

the law firm representing the client.” R. Regulating Fla. Bar 4-1.5(f)(2).

“No lawyer or firm may participate in the fee without the consent of the

client in writing.” Id. “The client must be furnished with a copy of the

signed contract and any subsequent notices or consents.” Id.

Rule 4-1.5(f) creates a practical difficulty in situations where an

attorney is hired to prosecute a wrongful death claim before any person is

authorized to sign a contingency fee agreement on behalf of the client.

In Cooper, we affirmed a probate court’s award of contingency fees to

attorneys who successfully settled a wrongful death claim on behalf of the

decedent’s estate, even though (1) the decedent’s great niece, Kelly, signed

the contingency fee agreement before she was appointed as personal

representative, and (2) Kelly’s letters of administration were eventually

revoked. 888 So. 2d at 684–90. We concluded that Kelly’s letters of

administration were merely voidable, rather than void ab initio, where they

were revoked due to the production of a previously-undisclosed will. Id.

at 688. Accordingly, we held that “the trial court did not abuse its

discretion in awarding attorney’s fees and personal representative fees to

Kelly and her attorneys, where the revocation of the letters of

administration was based on a later produced will and Kelly’s actions

benefited the estate.” Id. at 689.

In rejecting the argument that the contingency fee agreement between

Kelly and her attorneys was invalid under Rule 4-1.5(f), we reasoned:

The Coopers argue that the contingency fee agreement

violates rule 4.1–5(f) because Kelly signed it before she was

appointed as P.R. and, moreover, Kelly should never have

been appointed P.R. The Coopers conclude that since they

were the sole beneficiaries of the decedent’s estate, they were

the only parties entitled to a P.R. appointment and, since they

did not sign the contingency fee agreement, Kelly and her

attorneys violated rule 4–1.5(f) and should not be awarded

contingent fees. The Coopers cite no authority to support

their position that the contingency fee is invalid under

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rule 4.1–5(f) because Kelly signed the contract before she

was appointed P.R. and we cannot find any support for

that conclusion. Rather, we analogize the issue of avoiding

Kelly’s contingency fee contract to the decision of whether to

render the original letters of administration void, and,

likewise, we conclude the decision is permissive, not

mandatory, depending on whether there has been a benefit to

the estate. Here, where the estate clearly benefited from the

$100,000 settlement offer obtained through Kelly’s attorneys

pursuant to the contingency contract, we hold that the trial

court did not err by awarding Kelly’s attorneys’ fees

based on that contract, especially in this case where the

testimony at the hearing clearly demonstrated that both

Kelly and her lawyers understood that she entered into

the contract as potential P.R. to pursue a possible claim

on behalf of the estate, not in her individual capacity,

and that any award would go to the estate, not to Kelly.

Id. at 689–90 (internal citation omitted; emphasis added).

Finally, because “there was no attempt to discharge Kelly’s attorneys

until after they negotiated the settlement offer,” we explained that “[t]he

contingency requirement had been met and the attorneys were entitled to

rely upon the provisions of the written contingency fee contract to

determine the amount of their fee.” Id. at 690.

Here, in the current posture of this case, the trial court erred in

awarding a contingency fee to Miller & Jacobs based on the contingency

fee agreement with Pounds, because (1) Pounds was never appointed as

personal representative, and (2) Greenland, the personal representative,

has not ratified Pounds’s fee agreement with Miller & Jacobs. See §

733.601, Fla. Stat. (2020).

Cooper is limited by section 733.601 to its facts. Cooper does not stand

for the proposition that a contingency fee agreement with a potential

personal representative is enforceable even if the signatory is never

appointed as personal representative and even if the personal

representative does not ratify the agreement. Instead, Cooper is best

understood as a case that applied the relation-back doctrine to validate

the actions of a potential personal representative who later served as

personal representative for a period of time.

To be enforceable, a contingency fee agreement to pursue a wrongful

death claim before an estate has been opened must either (1) be signed by

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a person who later becomes personal representative or (2) be ratified by

the eventual personal representative if it was signed by someone else. For

example, in Cooper, Kelly’s powers as personal representative related back

to her act of signing the contingency fee agreement before her appointment

and had the same effect as though it occurred after her appointment.

Indeed, the personal injury attorney in Cooper recognized this in his

testimony, explaining that “[i]f the person who signs our contract is

appointed personal representative, that’s good enough.” Id. at 685.

We reject Miller & Jacobs’s argument that Greenland’s alleged

acquiescence to its representation justified the trial court’s ruling. For one

thing, there has been no evidentiary hearing to determine whether

Greenland acquiesced to the firm’s representation. However, even

assuming Miller & Jacobs’s factual assertions regarding Greenland’s

conduct are true, mere acknowledgment of representation is insufficient

to constitute ratification of a contingency fee agreement—instead, to

suffice for ratification, there must be a “positive and explicit” promise to

honor the agreement. See O’Malley v. Freeman, 241 So. 3d 204, 207 (Fla.

4th DCA 2018) (holding that a client’s post-coma conversations with his

attorney about the client’s lawsuit were insufficient to ratify a contingency

fee agreement that the client’s mother had signed while he was in a coma).

In this case, Miller & Jacobs has not advanced any argument that

Greenland ratified the contingency fee agreement with Pounds by making

a “positive and explicit” promise to honor the agreement.

On remand, the circuit court should rule upon Pounds’s motion to

revoke letters of administration. If the court were to grant that motion and

appoint Pounds as personal representative, then Miller & Jacobs would be

entitled to enforce the contingent fee contract under Cooper.

If the court denies the motion to revoke letters of administration and

Greenland does not ratify the contingent fee contract, the law firm would

still be entitled to the reasonable value of its services “on the basis of

quantum meruit.” Chandris, S.A. v. Yanakakis, 668 So. 2d 180, 186 n.4

(Fla. 1995).

We decline to reach the issue of whether Cunningham is entitled to any

attorney’s fees in connection with the wrongful death claim. There has

been no evidentiary hearing addressing her contribution to the recovery,

and the circuit court has not yet ruled on the issue.

We reverse the order on appeal without prejudice to the circuit court

reconsidering the enforceability of Pounds’s contingent fee agreement with

Miller & Jacobs after ruling on Pounds’s motion to revoke letters of

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administration. If the fee agreement is unenforceable, the court should

award a quantum meruit fee to Miller & Jacobs for the reasonable value

of its services in securing the wrongful death settlements.

The Award of a Personal Representative Fee to Pounds

We agree with the Estate that the trial court erred in awarding Pounds

the 3% personal representative fee where she was never appointed as

personal representative.

“A personal representative shall be entitled to a commission payable

from the estate assets without court order as compensation for ordinary

services.” § 733.617(1), Fla. Stat. (2020).

“A commission computed on the compensable value of the estate is

presumed to be reasonable compensation for a personal representative in

formal administration as follows: (a) At the rate of 3 percent for the first

$1 million.” § 733.617(2)(a), Fla. Stat. (2020).

In Cooper, we rejected the argument that the trial court should not have

awarded Kelly a fee for her role as personal representative, holding that

“the trial court did not abuse its discretion in finding that Kelly acted in

the best interest of the estate and in awarding Kelly P.R. fees calculated

solely on the net recovery she brought to the estate.” 888 So. 2d at 691.

Here, the trial court erred in awarding Pounds a personal representative

fee where she never served as personal representative. There is no

statutory authority for awarding a personal representative fee to someone

who has not served as personal representative. Cooper is distinguishable

because, in that case, Kelly served as personal representative for a period

of time and was thus entitled to a personal representative fee where she

procured a benefit to the estate by pursuing a wrongful death claim.

By contrast, although Pounds’s actions benefited the Estate, she has

never served as personal representative. Thus, based on the current

posture of this case, it was premature to award her a personal

representative fee.

As noted above, however, the circuit court still has not ruled upon the

pending motion to revoke letters of administration. If the trial court were

to grant Pounds’s motion and appoint her as personal representative, she

would be entitled to a personal representative fee pursuant to Cooper.

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We reverse the award of a personal representative fee to Pounds without

prejudice to the trial court awarding Pounds such a fee if the court grants

her motion to revoke letters of administration and appoints her as personal

representative.

Reversed and remanded for further proceedings consistent with this

opinion.

DAMOORGIAN and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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