Maxwell v. Roth
Maxwell v. Roth
Dissenting Opinion
dissents.
I respectfully dissent from that portion of the majority opinion which holds that appellant Roth is not entitled to recover the $70,000 awarded as attorney’s fees for “services performed for the estate for administrative duties and Jefferson National Bank.” The order appealed reflects the evidentiary basis relied upon by the court in making the attorney’s fee award: “the testimony on the fees hearing, the detailed time records submitted by Mr. Roth, and the court’s own knowledge gained from the trial of this matter.” In view of this proper evidentiary basis and the trial court’s further findings that “[e]ven additional hearings and testimony would not make it possible to completely define the relative portions of the work performed and the fee earned,” and “a reasonable fee for services performed for the estate for administrative duties and Jefferson National Bank is in the amount of $70,000.00[,]” I would affirm the fee award.
I concur in the holding of the majority as to the remainder of the opinion.
Opinion of the Court
While we agree with the appellee-at-torney that our decision in In re Estate of
On remand, the trial court is advised that it may not, as it may have done, award Roth fees for services rendered to Margaret Rose, on the theory that Roth was successful in defending the will against the alternative objections that it was not properly witnessed and that the testatrix did not possess testamentary capacity. This partial success was of no benefit to the estate, and in no way detracts from the determination that Margaret Rose, having been found guilty of procuring the will by undue influence, could not in good faith have offered the will for probate.
Affirmed in part; reversed in part, and remanded.
HUBBART and DANIEL S. PEARSON, JJ., concur.
. This finding was affirmed by this court in Rose v. Maxwell, 483 So.2d 458 (Fla. 3d DCA 1986).
. Indeed, the record in Hand reflects (although the opinion does not) that the proponent there was also successful in countering the objections that the will was not properly witnessed and that the testatrix lacked testamentary capacity, but, as here, unsuccessful in connection with the charge that the will was procured by undue influence.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.