Darian v. Weymouth
Case No. 4D10-550

Andrew Darian, personal representative of the estate of his father, James E. Hughes, and trustee of the James E. Hughes Living Trust, appeals a final summary judgment entered in favor of Elizabeth Ann Weymouth, personal representative of the estate of her mother, Martha Mayfield Hughes where the probate court awarded Mrs. Hughes’ interest in the Trust to her estate. James E. Hughes and Martha Mayfield were married in 1999. In August of the following year, James executed the James E. Hughes Living Trust Agreement in compliance with the parties’ prenuptial agreement. The Trust made provisions for disposition of Hughes’ estate upon his death. His will was a pour-over will that expressly incorporated the terms of the James E. Hughes Living Trust. The Trust did not specifically indicate what was to be done with the property bequeathed to Martha in the event that James survived Martha. On September 3, 2004, James and Martha Hughes were shot and killed by Martha’s adopted son from a prior marriage. Both died as a result of gunshot wounds to the head. Because the coroner was unable to determine which spouse predeceased the other, the probate court deemed their deaths to be simultaneous and entered an order to that effect in the probate of Mr. Hughes’ estate. Accordingly, Mr. Hughes’ property was to be disposed of as if he survived Mrs. Hughes. The probate court ruled that Mrs. Hughes’ interest, under the Hughes Trust, vested upon the creation of the Trust and did not lapse upon her death. Andrew Darian appealed.

The Fourth District Court of Appeal reversed the probate court’s ruling and found that no sufficient event existed to vest Mrs. Hughes’ interest in the Trust prior to her husband’s death. The Fourth noted that Mr. Hughes was the sole trustee and beneficiary under the Trust during his life. Mrs. Hughes was among the contingent residual beneficiaries whose interest came into creation only upon the death of Mr. Hughes and who were entitled to distribution of the then remaining corpus of the trust. Because it was judicially determined that Mrs. Hughes predeceased her husband, her interest in the Trust lapsed upon her death.

Carlin v. Javorek

The issue was whether the Supreme Court should exercise its discretionary jurisdiction to review of the Fourth District Court of Appeal’s reversal of a trial court’s order denying an award of attorney’s fees to our client.

The Fourth District Court of Appeal recently reversed a trial court decision holding that our client was not entitled to attorney’s fees despite finding that the opposing party was in breach of the parties’ settlement agreement. The trial court found that the opposing party breached the settlement agreement by failing to produce the required medical forms and failing to execute a medical release. However, the trial court held that the breach was not material and denied both parties’ requests for attorney’s fees. The Fourth District Court of Appeal reviewed the issue de novo and held that the trial court did not err in denying the opposing party’s request for attorney’s fees, but erred in finding that the opposing party’s breach was immaterial and in denying our client’s request for reasonable attorney’s fees pursuant to the parties’ settlement agreement. The Fourth District Court of Appeal found that the opposing party materially breached the settlement agreement and that the settlement agreement’s clear and unambiguous terms mandated an award of attorney’s fees to our client as the prevailing party. The opposing party petitioned the Supreme Court for discretionary review claiming that the Fourth District Court of Appeal’s decision expressly and directly conflicted with other district court and Supreme Court decisions. Our law firm continued representation of our client in the Supreme Court. Jurisdictional briefs were filed by both parties.

In agreement with the arguments in our jurisdictional brief, the Supreme Court declined to exercise its discretionary jurisdiction, denied opposing party’s petition for review, and awarded additional attorney’s fees to our client.

The issue was whether our client was entitled to an award of attorney’s fees, under the settlement agreement between the parties and as a prevailing party, after the opposing party failed to honor certain provisions in their settlement agreement.

After years of litigating a probate matter, our client and the opposing party entered into a settlement agreement. A provision in the settlement agreement stated that the opposing party would provide, within 45 days, possession and access to medical records that were necessary for the treatment and diagnosis of our client’s medical conditions, or pay for the reasonable cost incurred from compelling performance. When the opposing party failed to provide possession and access to the records, our client filed a motion to compel compliance and requested an award of reasonable attorney’s fees. The trial court granted our client’s motion, but held that the breach of the settlement was not material and denied our client’s request for attorney’s fees. The opposing party appealed the trial court’s order arguing for an award of attorney’s fees because our client failed to prove that the breach was material. Our client cross-appealed arguing for attorney’s fees as the true prevailing party.

The Fourth District Court of Appeal performed a de novo review of the matter and held that the trial court did not err in denying the opposing party’s request for attorney’s fees, but the trial court did err in failing to award our client the reasonable attorney’s fees requested and also erred in determining that the opposing party’s breach, as a whole, was not material. Thus, the Fourth District Court of Appeal affirmed the denial of attorney’s fees to the opposing party, but reversed and remanded the denial of attorney’s fees to our client with directions to award our client reasonable attorney’s fees under the settlement agreement and as a prevailing party.

Editor’s Note: At the time of writing this blog entry, a mandate from the court had not been issued.