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

> District Court of Appeal of Florida · January 5, 2022

URL: https://www.frixlaw.com/law-library/cases/5176198

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** January 5, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5176198

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

6
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

7
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5176198. Public record. Not legal advice.