 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
First Union National Bank v. Turney2/6/2003
First Union National Bank (First Union) appeals a final judgment awarding attorney's fees to Helen J. Turney, appellee. Mrs. Turney, as beneficiary of her late husband's trust, brought the underlying action against First Union, in its capacity as trustee of the Turney trust, based upon allegations that First Union had breached its fiduciary duty during the life of the trust. Mrs. Turney recovered a substantial jury verdict which was affirmed by this court. See First Union Nat'l Bank v. Turney, 824 So. 2d 172 (Fla. 1st DCA 2001)(Turney I), rev. denied, 828 So. 2d 385 (Fla. 2002). Also, the trial court ordered First Union to pay Mrs. Turney's attorney's fees and costs pursuant to section 737.627, Florida Statutes (1993). First Union asserts that the award of fees under section 737.627 was erroneous because appellee's cause of action for breach of fiduciary duty accrued prior to the effective date of the statute and, based upon the authority of Florida Patient's Compensation Fund v. Scherer, 558 So. 2d 411 (Fla. 1990), the fee statute cannot be retroactively applied. Because we find that certain of the acts constituting a breach of fiduciary continued beyond the October 1, 1993, effective date of the statute, we conclude that the trial court did not err in applying this fee statute, and we affirm.
Because this case involves the threshold resolution of the legal issue of whether section 737.627 can be applied in the instant case, we review that portion of the trial court's order under a de novo standard of review. See Gibbs Constr. Co. v. S.L. Page Corp., 755 So. 2d 787 (Fla. 2d DCA 2000). Once the attorney's fee statute is determined to be applicable, however, any issue relating to whether the award under the statute is appropriate is reviewed under an abuse of discretion standard. See Nalls v. Millender, 721 So. 2d 426, 427 (Fla. 4th DCA 1998)(holding that abuse of discretion standard applies to review of order granting fees under section 737.627).
Section 737.627, Florida Statutes (1993), provides, in pertinent part, that " n all actions challenging the proper exercise of a trustee's powers, the court shall award taxable costs as in chancery actions, including attorney's fees." First Union argues that, because section 737.627 was enacted with an effective date of October 1, 1993, see chapter 93-257, § 18 at 2512, Laws of Florida, and Mrs. Turney's cause of action accrued several years prior to 1993 when the acts constituting a breach of fiduciary duty occurred, the trial court erred in applying section 737.627 as the basis for an award of fees. The trial court rejected First Union's argument, ruling that "Plaintiff's entitlement to fees vested upon the Plaintiff's becoming the prevailing party" and that " he date of enactment of § 737.627, Fla. Stat., is of no consequence, as it was enacted prior to the jury's determination which resulted in the prevailing party in this suit being determined."
We agree with First Union that the trial court erred in basing its application of the fee statute on the fact that the date on which Mrs. Turney was determined to be the prevailing party occurred after the effective date of section 737.627. In Scherer, the plaintiff suffered damages by an act of medical malpractice which occurred in 1979 and discovered her injuries some time after September 1, 1980. The Supreme Court held that the attorney's fees provision of section 768.56, Florida Statutes (1981), which had become effective on July 1, 1980, could not be applied because "a cause of action for medical malpractice accrues for purposes of applying section 768.56 when the malpractice incident causing the injury and giving rise to the liability occurs," not upon discovery of the injury. Scherer, 55
Page 1 2 3 4 5 Florida Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|