author: MILLS, Judge. BOYER, Judge,

text:
    Shirlee Ann NICHOLS, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION, Florida Department of Commerce, Division of Employment Security and American Greetings, Respondents. STATE of Florida DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Petitioner, v. Angel PORRATA and Industrial Relations Commission, Respondents. STATE of Florida DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Petitioner, v. Jose HUERTAS and Industrial Relations Commission, Respondents.
    Nos. DD-289, GG-297 and GG-365.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.
    Rehearing Denied Dec. 20, 1978.

      Brian S. Duffy of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, John D. Rawls of Foerster & Hodge, Jacksonville, for petitioner in No. DD-289.
    Alex D. Littlefield and Kenneth H. Hart, Jr., Tallahassee, for respondents in No. DD-289.
    Kenneth H. Hart, Jr., and Alex D. Little-field, Tallahassee, for petitioner in Nos. GG-297 and GG-365.
    Joel V. Lumer of Heimberg & Lumer, Coral Gables, for respondents in Nos. GG-297 and GG-365.
   MILLS, Judge.

Does Section 443.16(2), Florida Statutes (1977), authorize the Industrial Relations Commission to order the payment of fees to attorneys representing unemployment compensation claimants before the Commission from the employment security administration fund?

In the Nichols case, the Commission concluded it did not have authority. In the Porrata and Huertas cases, the Commission reached the opposite conclusion, holding it had authority. We have consolidated the three cases for our review because the same issue is raised in each case.

Section 443.16(2) provides:

(2) FEES.—
(a) No individual claiming benefits shall be charged fees of any kind in any proceeding under this chapter by the commission or division or their representatives, or by any court or any officer thereof, except as hereinafter provided. Any individual claiming benefits in any proceeding before the commission or division, or representatives of either, or a court may be represented by counsel or duly authorized agent, but no such counsel or agent shall either charge or receive for such services more than an amount approved by the commission or division or by the court.
(b) An attorney at law representing a claimant for benefits in any district court of appeal of this state or in the supreme court of Florida shall be entitled to counsel fees payable by the [division] as fixed by the court in either of the following cases:
1. Where petition for review or appeal is initiated by any party to such proceeding other than the claimant, or
2. Where such petition for review or appeal is initiated by the claimant and results in a decision awarding more benefits than did the decision under review or from which appeal was taken.
(c) Attorneys’ fees awarded under this section shall be paid by the division out of employment security administration funds as a part of the costs of administration of this chapter and may be paid directly to the attorney for the claimant in a lump sum.
(d) Any person, firm or corporation who or which seeks or receives any remuneration or gratuity for any services rendered on behalf of a claimant, except as allowed by this section and in an amount approved by the commission or by a court, shall be guilty of a misdemeanor. Any person, firm or corporation who or which shall solicit the business of appearing on behalf of a claimant, or shall make it a business to solicit employment for another in connection with any claim for benefits under this chapter, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.-082 or s. 775.083.

Paragraph (a) of Section 443.16(2) limits the fee an attorney may charge or receive for representing a claimant before the Commission or a court to an amount approved by the Commission or the court.

Paragraph (b) authorizes a district court of appeal or the Supreme Court to fix a fee for counsel representing a claimant before it and to require the Division of Employment Security to pay the fee. Subpara-graphs 1 and 2 limit this authority to cases where review or appeal is initiated by a party other than the claimant or to cases where review or appeal is initiated by the claimant and results in a decision awarding more benefits than the decision reviewed or appealed.

Paragraph (c) directs that attorneys’ fees awarded under this section shall be paid by the division out of employment security administration funds as a part of the costs of administration of this chapter.

Paragraph (b) is the only provision in Section 443.16(2) that provides for an award of attorneys’ fees and provides that the fees shall be paid by the division. This is limited to only two types of cases. Paragraph (a) is restricted to fees charged a claimant by an attorney. It makes no reference to an award of attorneys’ fees. Thus, paragraph (c) which directs that attorneys’ fees awarded under this Section be paid out of the employment security administration fund can only refer to or be applicable to paragraph (b). Therefore, Section 443.16(2) does not authorize the Commission to award attorneys’ fees to attorneys representing unemployment compensation claimants before it to be paid out of employment security administration funds.

Claimants argue that paragraph (c) is ambiguous and unclear, and that we should resolve the ambiguity and lack of clarity in favor of claimants. We do not agree that the provisions of paragraph (c) are ambiguous and unclear. When all of the provisions of Section 443.16(2) are read together, they are unambiguous and clear. If the legislature had intended to provide for the award of fees to attorneys representing claimants before the Commission and to provide for their payment out of the employment security administration fund, it would have used terms like it used in paragraph (b). It would have referred to the award of attorneys’ fees in paragraph (a) rather than to the charges of attorneys, and it would have required the division to pay the fees rather than merely requiring the approval of the charges by the Commission. It would have limited the award of fees to those types of cases set forth in subparagraph (1) and (2) of paragraph (b).

To construe Section 443.16(2) as claimants would have us do would soon bankrupt the employment security administration fund because every attorney representing a claimant before the Commission would be entitled to a fee to be paid from the fund, win, lose or draw. We cannot conceive that the legislature intended this result.

We concede that the purpose of the unemployment compensation act is to lighten the burden which falls upon the unemployed worker and his family. We agree that the legislature has recognized that the unemployment compensation claimant has the need of assistance of attorneys. We acknowledge that many attorneys will be unwilling to accept employment in such cases unless there is a reasonable possibility they will receive a reasonable fee. Nevertheless, we have no authority to legislate. That is the sole authority of the legislature and we should not encroach upon it. This is a matter for the legislature’s consideration.

We deny certiorari in the Nichols case. We grant certiorari in the Porrata and Huertas cases and remand them to the Commission for the entry of orders denying the awards of attorneys’ fees to claimants’ attorneys. We deny attorneys’ fees to all attorneys representing claimants in these three cases before us.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

It is important to note the exact issue, as phrased in the majority opinion: Does F.S. 443.16(2) authorize the Industrial Relations Commission to order the payment of fees to attorneys representing unemployment compensation claimants before the Commission from the Employment Security Administration Fund? The issue is not whether such fees are “required” but only whether authorized. Accordingly, the arguments set forth by the majority that such construction “would soon bankrupt the Employment Security Administration Fund because every attorney representing a claimant before the Commission would be entitled[] to a fee to be paid from the fund, win, lose or draw” is, in my view, without merit.

Paragraph (a) limits the fee an attorney may charge or receive for representing a claimant before the Commission or a court to an amount approved by the Commission or the court.

Paragraph (b) authorizes a district court of appeal or the Supreme Court to fix an attorney’s fee for the representation of a claimant before it and to require the Division of Employment Security to pay the fee. Subparagraphs 1 and 2 limit such authority to cases where review or appeal is initiated by a party other than the claimant or to cases where review or appeal is initiated by the claimant and results in a decision awarding more benefits than did the decision reviewed or appealed.

Paragraph (c) directs that attorneys’ fees awarded be paid by the division out of Employment Security Administration funds as a part of the costs of administration.

Paragraphs (a) and (d), it will be noted, use the word “approved”. Paragraph (b) uses the word “fixed” and paragraph (c) “awarded”.

The division takes the position that paragraph (a) is restricted to fees charged by a claimant by an attorney and has no relation to the “award” of a fee; that paragraph (b) is the only provision providing for the fixing of a fee and that it is effective only as to cases (1) where the petition for review or appeal is initiated by a party other than the claimant or (2) where initiated by the claimant and results in a decision awarding more benefits than did the decision reviewed or appealed, reasoning that paragraph (c) which directs that attorney’s fees “awarded under this section” be paid out of the Employment Security Administration fund, refers only to paragraph (b). It therefore concludes that F.S. 443.16(2) does not authorize the commission to award attorney’s fees to attorneys representing unemployment claimants before it to be paid out of Employment Security Administration funds.

The claimants urge that paragraph (c) is ambiguous and unclear, and that we should resolve the ambiguity and lack of clarity in their favor.

They further argue that the purpose of the Unemployment Compensation Act is to lighten the burden which falls upon the unemployed worker and his family; that the legislature has recognized that the unemployment compensation claimant has the need of assistance of attorneys, and that many attorneys will be unwilling to accept employment in such cases unless there is a reasonable possibility that they will receive a reasonable fee.

Certainly I agree that this court is without authority to legislate. However, where confusion exists it is not only our prerogative but our duty to construe acts passed by our legislature, our responsibility being to attempt to determine the legislative intent.

The use of the word “section” in F.S. 443.16(2)(c) refers to the entire statute. (See Escambia Mid-County Development Corp. v. State Dept. of Commerce, etc., 356 So.2d 855 (Fla. 1st DCA 1978)) The crucial word is, of course, “awarded”. In common parlance, when referring to attorney’s fees, the words “award”, “fix”, “allow”, “set” and “approve”, are used interchangeably. It is not unusual for a lawyer or a judge to refer to “awarding” attorney’s fees in domestic relations cases, probate cases, eminent domain cases, mortgage foreclosure cases,, actions on promissory notes, etc. when technically he or she means “allowing” or “approving”.

F.S. 443.16(2)(a) does not prohibit an agreement between a claimant and an attorney as to attorney’s fees but it does prohibit any agreement for any fee in excess of an amount approved by the commission, division or court. Under such circumstances we know that the customary contract between the claimant and the attorney will be that the attorney will agree to accept such sum as is “set” by the appropriate body. The “setting” of a fee is tantamount to “awarding” a fee. The legislature, when it used “approved” in paragraph (a) and when it used “awarded” in paragraph (c) intended, I believe, the latter to include the former.

It is not urged by the claimants, nor would I contend, that a fee of such magnitude as to “bankrupt the Employment Security Administration Fund” would be authorized, awarded, fixed, allowed, set, or approved in every case. I would anticipate, on the contrary, that such fees would be restricted by those principles applicable to other types of litigation in which courts become involved with attorney’s fees.

As conceded by the majority, the very purpose of the Unemployment Compensation Act is to lighten the burden which falls upon the unemployed worker and his family. The construction placed by the majority upon the statute is not, in my view, in keeping with that purpose.

I would grant certiorari in the Porrata and Huertas cases and deny in the Nichols case. I would also grant the claimants timely filed motion for attorney’s fees incident to review in this court pursuant to F.S. 443.16(2).

      . Emphasis added.

      . Complexity of issues, success, amount in controversy, etc.


source: Caselaw Access Project

author: BOARDMAN, Acting Chief Judge.

license: Public Domain

text:
    CITY OF TAMPA, a Municipal Corporation of the State of Florida, Appellant, v. ISLANDS FOUR, INC., a Florida Corporation, Appellee.
    No. 77-1870.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 1978.
    Rehearing Denied Nov. 27, 1978.

      Henry E. Williams, Jr., City Atty. and Thomas K. Morrison, Asst. City Atty., Tampa, for appellant.
    Britt Whitaker, Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellee Islands Four, Inc. owned and operated a dance hall on Davis Island, which is located within the city limits of appellant City of Tampa. For several years Islands Four had been licensed by the city to operate the dance hall as well as a hotel, restaurant, and bar on the same premises. Appellee applied to the city for renewal of its public dance hall license for the occupational license year October 1976 — September 1977. At a regularly scheduled Tampa City Council meeting held on January 25, 1977, several residents of Davis Island appeared and objected to the renewal of the dance hall license on various grounds. John Golden, one of the four officers and owners of Islands Four, was present at the meeting and argued in support of renewal of the dance hall license. The city council voted not to renew the license after hearing the arguments.

On January 27, 1977, attorney for appel-lee filed with the city council a request for rehearing on the matter. The request was granted and on February 15, 1977, the city council held a hearing to reconsider their action of January 25. At this hearing the four owners of Islands Four were present and were represented by an attorney who presented evidence and testimony. Evidence and testimony against the renewal of the Islands Four dance hall license were presented by an assistant city attorney and by several residents of Davis Island who reported being disturbed by loud noise from the dance hall at night, among other complaints. The city council was advised by an assistant city attorney of section 6-44 of the City of Tampa Code which provides that a dance hall license may be revoked for violation of ordinances applying to dance halls. He further advised council of Sections 23-1 and 23-2 which prohibit the creation of unreasonably loud noise by the playing of musical instruments in such a manner as to disturb the repose of persons in any dwelling. Thereafter the Tampa City Council voted to deny renewal of the Islands Four dance hall license.

Subsequently, appellee commenced an action against appellant in the Circuit Court of Hillsborough County seeking an injunction and damages. The complaint alleged that the Tampa City Council acted in an arbitrary, capricious, and discriminatory manner when it denied renewal of the Islands Four dance hall license. At the final hearing of the circuit court, over objection of counsel for the city, evidence and testimony were received which had not been presented to city council at the February license hearing. The court in its final judgment found that the city council acted in an arbitrary, capricious, and discriminatory manner at its February 15, 1977 hearing; and directed appellant to issue the dance hall license to Islands Four and to pay Islands Four the sum of $75,000 as damages. The final judgment did not include any findings of fact.

Whether the act was arbitrary or capricious is determined first by a look at the applicable ordinances. If the ordinances afford definite, reasonable factors to guide a discretionary agency action, and there is sufficient, competent evidence to support the findings of the agency, its action is not arbitrary or capricious. See, e.g., Hope v. City of Gainesville, 195 So.2d 849 (Fla.1967); De Groot v. Sheffield, 95 So.2d 912 (Fla.1957).

Our decision is dependent on certain provisions of the code of the City of Tampa. Section 6-41 applies to issuance of a license for a public dance hall and section 6-44 to a forfeiture or revocation of a dance hall license. There was no ordinance in effect at that time which expressly addressed a renewal or reissuance of a license for a dance hall.

Sec. 6-41. Public dance hall — License required; fee; compliance with regulations.
A license shall be required for each public dance hall. No license for a public dance hall shall be issued until an application is made to the city council and the council shall determine that the applicant has complied with and conformed to this Code and all health and fire regulations of the city. At the time the application is made, a fee of twenty-five dollars ($25.00) shall be paid to the city comptroller to cover the costs of investigation and administration by the city. (Ord. No. 873 — A, 12-2-42; Code 1953, § 26-19; Ord. No. 4400, § 1, 3-19-68)
Section 6-44. Same — Revocation of license; lapse of time before reis-suance.
The license of any public dance hall shall be forfeited or revoked by the city council for disorderly or immoral conduct on the premises, or for the violation of any of the rules, regulations, ordinances and laws governing or applying to public dance halls or public dances. If at any time the license of a public dance hall shall be forfeited or revoked, at least six (6) months shall elapse before another license or permit shall be given for public dancing to the same person or corporation forfeiting such license, or on the same premises unless it shall be clearly shown that the person forfeiting such license has ceased all direct and indirect connection with such premises. (Code 1926, § 1316; Code 1953, § 26-20)

City of Tampa Code, Section 23-1 provides in pertinent part that: “The creation of any avoidable and unreasonably loud, disturbing, and unnecessary noise within the corporate limits of the city is hereby prohibited.” City of Tampa Code, Section 23-2 provides in pertinent part that:

The following acts, among others, are declared to be loud, disturbing, avoidable, and unnecessary noises and nuisances in violation of this chapter. .
The playing of any radio, phonograph or any musical instrument or device in such manner or with such volume as to annoy or disturb the quiet, comfort, and repose of persons in any dwelling, place of business, hotel, or other types of residence.

As explained in Librizzi v. Plankett, 126 N.J.L. 17, 16 A.2d 280 (1940) the power to revoke for certain enumerated reasons has as a corollary the implied power to refuse to renew for those same reasons. This conclusion is based on the perceived legislative intent made to appear from the time limit placed on the duration of the license and the power to revoke for failure to observe the requisites of the ordinance at issue. Absent a specific ordinance or a statute expressly addressing renewal, the power to refuse to renew and the grounds for refusal to renew are found implicitly in the section pertaining to revocation.

Section 6-44 of the city code provides as one ground for revocation violation of any of the applicable city ordinances. In this case the board was presented with evidence that appellee violated its noise ordinance, Sections 23-1 and 23-2. As the record reveals there was sufficient, competent evidence provided by testimony before the city council from several residents who lived near the dance hall and other evidence that there was a violation of these sections. We may not have weighed this evidence against evidence to the contrary as did the city council, but that does not affect our decision. Nonetheless, we do not read the evidence before the trial court to have shown that the city acted wrongfully. The totality of the evidence, including that presented to the trial court for the first time, does not show that there was an absence of sufficient, competent evidence to support the finding of the city council that there was a violation of the noise ordinances.

Appellee would have had to have shown that the city council did not refuse to renew dance hall licenses to other similarly situated entities which violated the noise ordinances to show that its action was discriminatory. This it did not attempt to do.

We hold that the trial court abused its discretion in finding that the refusal to renew was arbitrary, capricious, and discriminatory because there was sufficient, competent evidence to support the findings of the city council that the noise ordinances had been violated thereby precluding renewal of the dance hall permit.

The remaining question raised by this case is whether damages could be awarded against the city for its action. In view of our disposition of the first issue it is not necessary to address this point. We do, however, point out that damages could not be awarded even if the action had been wrongful. We cannot accept appellant’s bald assertion that a refusal to renew constitutes a revocation and that since a revocation is quasi-judicial a refusal to renew is quasi-judicial. We do, however, accept its conclusion that the action of the city council was quasi-judicial. It is well established that a municipal corporation is immunized from liability for its acts which are of a quasi-judicial nature.

The standard for determining whether an act of a municipal corporation is quasi-judicial is whether that action is dependent upon a showing made at a hearing required by law to afford due process to the affected party. Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957); Board of County Commissioners v. Casa Development Ltd., II, 332 So.2d 651 (Fla.2d DCA 1976). Appellee argues that a statute must require that due process be afforded for an action to be quasi-judicial. While there are cases which involve statutory direction to-provide due process, the act is quasi-judicial if due process is simply required by the nature of the right or privilege at issue. A licensee has a property right in renewal of a business license of which he cannot be deprived absent the requisites of due process. Vicbar v. City of Miami, 330 So.2d 46 (Fla.3d DCA 1976). Even if the failure to renew was wrongful, which we have held it was not, appellant would not be liable in tort for refusal to renew this permit.

REVERSED and REMANDED.

SCHEB and DANAHY, JJ., concur.

      . Delay in consideration of this application is more apparent than real. The record seems to indicate that the application had been denied well before the January 1977 meeting but ap-pellee had not been notified. Both parties treat the application as having been in limbo for purposes of this appeal.

      . We do not examine the propriety of seeking injunctive relief from action by a municipal corporation since it was not raised as a point on appeal.

      . Appellee did not attack the ordinances themselves.

      . Since the time of this action by the city council the provisions applicable to dance halls have been substantially revised. This opinion does not necessarily apply to actions taken pursuant to the revised code.

      . Appellee cites Dubin v. Dep’t of Business, 262 So.2d 273 (Fla. 1st DCA 1972) and Vocelle v. Riddell, 119 So.2d 809 (Fla. 2d DCA 1960) to support its contention that renewal in this case is a mandatory and ministerial duty. Unlike the ordinance before us, the statutes in Dubin and Voceiie specifically addressed renewal in terms which did not require any determination to be made by the members of the Florida Industrial Commission as to renewal. The rule in Dubin, Vocelle, and similar cases applicable to the facts before us, is that there is no less due process protection for refusal to renew than for revocation of a license.


author: KEHOE, Judge.

text:
    In re ESTATE of Samuel DONNER, Deceased. Larna Katz DONNER, Appellant, v. Paul B. ANTON et al., Appellees. Ruth Jean DONNER, Appellant, v. Paul B. ANTON et al., Appellees.
    Nos. 76-1919, 76-2233.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 22, 1978.

      Broad & Cassel and Lewis I. Horwitz, Bay Harbor Island, for Larna Katz Donner.
    Heller & Kaplan, Robert Golden and Daniel Heller, Miami, for Ruth Jean Donner.
    Abrams, Anton, Robbins, Resnick & Schneider and David L. Kline, Hollywood, Amy Linda Steele, North Miami Beach, for appellees.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   KEHOE, Judge.

This is a consolidated appeal taken from a final judgment entered after a non-jury trial conducted before the court below. The final judgment upheld Ruth Jean Donner’s (appellant in appeal No. 76-2233, ap-pellee in appeal No. 76-1919) claim to a $1,000,000 tax-free bequest made pursuant to a settlement agreement entered into with her former husband, Samuel Donner, and implemented by the provisions of his will probated after his death. The final judgment under review also imposed an “equitable lien” in favor of Ruth Jean Donner’s $1,000,000 bequest upon Larna Katz Donner (appellant in appeal No. 76-1919, appellee in appeal No. 76-2233), Samuel Donner’s third wife and widow, to the extent that Larna Katz Donner’s dower claim reduces the amount of Ruth Jean Donner’s bequest.

This action was precipitated by the death of Samuel Donner on January 25, 1973. He died leaving behind an estate valued in excess of $7 million dollars. A will contest ensued involving numerous parties and a complicated probate proceeding below. In addition to the litigation surrounding the probate of the will itself, several other related lawsuits arose out of peripheral matters concerning the administration and distribution of the estate. Multiple appeals have been taken from the various orders entered by the court below during the probate of the estate and in disposing of the related matters. This consolidated appeal is taken from a final judgment disposing of one such related matter connected with, but not a part of, the probate of the Donner Estate. Facts pertinent to this separate consolidated appeal are more fully explained below.

This action was originally brought by Ruth Jean Donner for damages and other equitable relief allegedly incurred for breach of contract and for fraud. The defendants below were the executors of the Donner Estate (the estate) and Samuel Donner’s widow, Larna Katz Donner [for the sake of brevity the parties and the decedent will be referred to as Ruth, Larna and Sam].

After a non-jury trial on the merits, the court below entered a final judgment containing extensive findings of fact and ordered inter alia as follows:

(1) That Ruth recover from the Donner Estate the sum of $452,210.74 in satisfaction of her claims against the estate;

(2) That Ruth recover from the estate such further sum as shall be in an amount equal to the deficiency, if any, in full satisfaction of the $1,000,000 bequest provided for by Sam’s will pursuant to the terms of his settlement agreement with Ruth;

(3) That Ruth recover from Larna by way of equitable lien upon the dower award due to Larna an amount equal to the sum that Larna’s dower claim reduces Ruth’s $1,000,-000 bequest, should the estate prove unable to satisfy her (Ruth’s) claim in full.

Both Ruth and Larna appeal the final judgment. Ruth appeals the entire judgment contending that: (1) the trial court failed to set aside her divorce from Samuel Donner on the grounds of fraud and declare her to be Sam’s true widow; (2) the trial court erred by requiring her to pay her own attorneys’ fees and costs; and (3) the trial court erred by relieving the estate from any obligation to pay her attorneys’ fees in these proceedings to enforce the final judgment dissolving her marriage to Sam. Lar-na only appeals from that part of the final judgment which provided for an equitable lien against her dower. Both of these appeals have been consolidated for all appellate purposes.

We reverse in part and hold: (1) that Larna is Samuel Donner’s lawful widow; (2) that she is entitled to her full dower right as provided by law at the time she elected to take dower; (3) that the settlement agreement between Ruth and Sam was invalid insofar as it purported to require Larna to waive her right to dower; and (4) that the equitable lien imposed upon Larna’s dower in favor of Ruth is invalid and of no effect.

The facts germane to this appeal may be briefly summarized as follows:

Sam died at sea aboard a cruise ship while honeymooning with his new bride, Larna. He died testate leaving behind a will and a codicil thereto, and several interested parties with sizable claims against the estate. A petition for probate of his estate was filed soon thereafter in accordance with the provisions of the Florida Probate Code then in effect. At his death, Sam left behind a sizable estate conservatively valued in excess of $7 million dollars and consisting largely of a complicated portfolio of corporate and personal interests in real estate and various other business ventures. Sam was a large scale developer who operated through various corporate and partnership entities to construct numerous large condominium projects in South Florida. Through his own efforts and business acumen, he acquired sizable financial interests in a number of these developed properties. These interests now comprise the bulk of his estate. The estate has since been continuously involved in litigation.

Prior to his marriage to Larna in 1972, Sam had been married to Ruth Donner for approximately 13 years. Ruth was Sam’s second wife. Ruth and Sam separated in September 1971, and a final judgment dissolving their marriage was entered on October 10, 1972. This final judgment dissolved the existing marriage and ratified a settlement agreement previously entered into between Sam and Ruth on August 4, 1972, whereby Sam promised to leave Ruth a $1 million tax-free bequest in his will, and obligated him to enter into an antenuptial agreement with any future woman he might marry in which his future wife would waive her dower to the extent it might interfere with Ruth’s bequest.

Sam and Larna began dating even before his separation from Ruth in 1971. They had met years before and had resumed their acquaintance sometime after Larna, by then divorced, began working as a rental agent with Galahad Hall Associates, a Donner enterprise. As early as 1968 Ruth accused Larna of alienating Sam’s affection for her. The trial court found as fact that at the time of the execution of the settlement agreement of August 4, 1972, Sam and Larna were seeing each other on almost a daily basis and the dissolution of the marriage sought by Sam was for the purpose of marrying Larna.

On October 30, 1972, some 20 days after the final judgment dissolving his marriage to Ruth and notwithstanding the contrary provisions of the settlement agreement of August 4, 1972, Sam entered into an ante-nuptial agreement with Larna wherein it was provided:

“. . . [T]hat LARNA does not release or relinquish any and all claims and rights of any kind, nature and description that she may acquire by reason of the marriage in SAM’S property or estate, under the present or future laws of the State of Florida or any jurisdiction, including, but without limitation: (a) the right to elect to take against any present or future Last Will and Testament or Codicil of the other party. . . .”

Sam married Larna on December 22, 1972 in Ft. Lauderdale. Thirty-four days later he died of a heart attack while vacationing aboard a cruise ship. In his will Sam left the promised one million dollars to Ruth. By a codicil to his will executed after his marriage on January 4, 1973, Sam made his then wife, Larna, his sole residual beneficiary. Later, during the probate of the estate, Larna chose not to take under the will and filed her election to take dower pursuant to Section 731.35, Florida Statutes (1971).

Ruth filed this lawsuit against Larna and the estate seeking equitable relief for damages sustained by her by virtue of the alleged breach of her settlement agreement with Sam. She charged that Sam and Lar-na conspired to fraudulently deprive her of her expectancy under that agreement by entering immediately into an antenuptial agreement expressly contrary to the provisions of the settlement agreement. Ruth further contended that Sam’s marriage to Larna was so permeated by this fraud that it was a nullity and that she should be declared Sam’s lawful widow.

The trial court, in its lengthy final judgment, made certain factual findings and legal conclusions pertinent to the issues facing this court. It found:

(1) That at the time of the execution of the antenuptial agreement between Larna and Sam, Larna knew that a property settlement agreement had been entered into between Sam and Ruth [no specific finding was made that Larna had actual knowledge of the contents of that agreement];

(2) By virtue of her previous personal experience, Larna was charged with knowledge of the provisions of Sam’s divorce decree and its accompanying settlement agreement with Ruth;

(3) That Sam, willfully, knowingly and with the conscious intent to do so, breached his settlement agreement with Ruth by knowingly entering into an antenuptial agreement with Larna only days later that was in direct contradiction of, and in violation of, the settlement agreement;

(4) That Sam’s execution of the antenuptial agreement, despite the clear provisions of the settlement agreement to the contrary, was sufficient to constitute a fraud upon Ruth;

(5) That Larna, by virtue of her election to take dower, joined in the fraud perpetrated upon Ruth.

The trial court concluded that Ruth was entitled to judgment for the damages she sustained by Sam’s willful breach of the settlement agreement and by the fraudulent actions of Sam and Larna entering into an antenuptial agreement which had as its specific purpose the reaffirmation of Lar-na’s dower right notwithstanding the contrary provisions in the settlement agreement. The trial court ruled that Ruth was entitled to her $1 million tax-free bequest out of the proceeds of the estate. Should Larna’s election to take dower diminish the assets of the estate to the extent that Ruth would not receive the full amount of her bequest, then the court imposed an equitable lien on Larna’s dower claim to the extent of any deficiency.

I.

At the outset of our discussion, we acknowledge the assiduous efforts of the able trial judge in providing extensive findings of fact to assist us in our review of the numerous issues on appeal. These findings of fact come to this court clothed with the presumption of correctness and will not be disturbed upon appellate review absent a showing that they are clearly erroneous or totally without any substantial evidence in their support. Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977); Courshon v. Fontainebleau Hotel Corp., 307 So.2d 901 (Fla. 3d DCA 1975). We are not however bound by the trial court’s legal conclusions where those conclusions conflict with established law. Holland v. Gross, 89 So.2d 255 (Fla.1956).

“A finding of fact by the trial court in a non-jury case will not be set aside on review unless there is no substantial evidence to sustain it, unless it is clearly against the weight of the evidence, or unless it was induced by an erroneous view of the law. A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion. 3 Am.Jur. 471. When the appellate court is convinced that an express or inferential finding of the trial court is without support of any substantial evidence, is clearly against the weight of the evidence or that the trial court has misapplied the law to the established facts, then the decision is ‘clearly erroneous’ and the appellate court will reverse because the trial court has ‘failed to give legal effect to the evidence’ in its entirety.” Id. at 258.

In light of these controlling principles of law, we proceed to carefully examine the final judgment rendered below. The first issue requiring resolution is the trial court’s conclusion that Larna joined with the decedent to perpetrate a fraud upon Ruth. The trial court held that Larna, by her election to take dower, “joined in” with Sam to defraud Ruth of her (Ruth’s) promised $1,000,000 bequest. Therefore, as a result of this allegedly fraudulent conduct engaged in by Sam and Larna, the trial court ruled that Ruth was entitled to a judgment sufficient to uphold her promised bequest. Larna challenges on appeal the conclusion that she joined in any fraudulent conduct against Ruth. She contends that she never had knowledge of the contents of the settlement agreement and cannot be “charged with knowledge” of the restrictions imposed upon her dower rights by that agreement since (1) she had no actual knowledge of the contents of the agreement; (2) she had no duty imposed upon her by law to ascertain the provisions of the agreement; and (3) in any event, no fraud was established by the facts adduced below. Finally, she contends that even if there was fraud on Sam’s part, the record is not sufficient to prove the joinder by Larna in such fraud. We agree.

To establish fraud attributable to Larna under the circumstances of this case requires: (1) a showing that Ruth was defrauded by Sam’s willful breach of the settlement agreement; (2) a showing that Lar-na was aware of the restrictions imposed upon her by that agreement and considered herself to be bound by it; and (3) a showing that Larna intended to join in to defraud Ruth of her promised bequest. Our review of the record convinces us that all of these essential elements were missing and that therefore the trial court erred when it concluded that Larna joined in with Sam’s alleged fraud upon Ruth.

In the first place, we are not persuaded that it was ever conclusively established below that any fraud was perpetrated upon Ruth by Larna or by Sam. The trial court based its conclusion that Sam defrauded Ruth by his willful and knowing breach of the settlement agreement and his subsequent joinder in the antenuptial agreement shortly thereafter. This portion of the final judgment is open to serious challenge.

Sam may have never intended to abide by his agreement with Ruth. The trial court found that he consciously intended to breach the settlement agreement at his earliest opportunity. That may be so but a willful breach of contract alone, without more, is insufficient in law to constitute fraud:

“. . . [T]he fraudulent breach of a contract does not give rise to an action for fraud, and therefore where the only fraud charged relates to a breach of the contract, and not to its inducement or making, no action for fraud exists.” 37 Am.Jur.2d Fraud & Deceit § 21 (1968).

The trial court did not find fraud in the inducement nor would the record support such a finding. Moreover, had Sam promised Ruth that he would require his future spouse to waive dower as an inducement to entice her to accept the settlement agreement, this still would not amount to fraud in the legal sense. Harrington v. Rutherford, 38 Fla. 321, 21 So. 283 (1896); Brod v. Jernigan, 188 So.2d 575 (Fla. 2d DCA 1966). But see Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972).

Further, Sam’s breach of contract cannot be “passed on” to Larna regardless of his culpability. Larna was not a party to the settlement agreement and had no contractual relationship whatsoever with Ruth. She made no promises to Ruth or engaged in any misrepresentations. Ordinarily, a contract cannot bind one who is not a party thereto since to create a valid contract there must be reciprocal assent to a certain and definite proposition. Strong & Trowbridge Co. v. H. Baars & Co., 60 Fla. 253, 54 So. 92 (1910). Sam’s willful breach of contract alone is not sufficient to pin culpability upon Larna. Accordingly, Larna cannot be said to have breached the settlement agreement with Ruth.

We next turn to the issue of whether Larna was aware of the restrictions imposed upon her by the settlement agreement. Initially we note that the trial court never found that Larna had actual knowledge of the provisions of the settlement agreement. The evidence presented below was never conclusive on that point. Instead, the trial court found that Larna was “charged with knowledge” of the provisions of that agreement. The trial court arrived at this conclusion based upon the following findings of ultimate fact: (1) Larna knew that the settlement agreement had been entered into by Sam with Ruth; (2) the divorce decree and settlement agreement were matters of public record available for her perusal; and (3) Larna’s previous personal experience in entering into a property settlement agreement with her former husband should have put her on notice of the provisions of the Sam-Ruth agreement. Since Larna was “charged with knowledge” of the settlement agreement, she was, under the reasoning employed by the trial court, by implication, bound by the provisions of that agreement. The settlement agreement thus obligated Larna to waive dower in Sam’s estate as a condition of marriage, and the trial court concluded that it was valid and enforceable.

The trial court fell into error when it concluded that Larna was “charged with knowledge” of the contents of the settlement agreement. Neither the facts as found in the final judgment nor our careful review of the record discloses evidence sufficient to justify this legal conclusion. Lar-na was not charged with knowledge of the provisions of the settlement agreement since she had no actual knowledge of that agreement and no duty to inform herself of its contents. Such a duty, had it existed, may have been sufficient to constitute culpable negligent ignorance equivalent in law to actual knowledge. The trial court however reached its conclusion based upon its determination that Larna had such a duty to inquire as to the contents of the settlement agreement and that she breached this duty by intentionally abstaining from all inquiry into the provisions of that agreement in order to avoid notice of its restrictions upon her dower rights. As authority for its conclusion, the trial court cited 23 Fla.Jur. Notice and Notices § 6 (1959), as follows:

“. . . [Negligent ignorance has the same effect in law as actual knowledge. And wherever facts put a person on inquiry notice will be imputed to him if it is made to appear that he has designedly abstained from inquiry for the purpose of avoiding notice. A person has no right to shut his eyes or ears to information, and then say that he has no notice. The law will not permit him to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand. If he has either actual or constructive information and notice sufficient to put him on inquiry, he is bound, for his own protection, to make that inquiry which such information or notice appears to direct should be made. If he disregards that information or notice which is sufficient to put him on inquiry and fails to inquire and to learn that which he might reasonably be expected to learn upon making such inquiry, then he must suffer the consequences of his neglect.” (footnotes omitted)

We have no disagreement with the law quoted above. The trial court, however, omitted the initial, highly relevant, portion of the quotation from Florida Jurisprudence which, when included, materially influences the expression of the law on point:

“Means of knowledge, with the duty of using them, are in equity equivalent to knowledge itself. Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge. . . .” (emphasis supplied).

Even assuming that Larna’s ignorance of the prior agreement was negligent, nowhere in the proceeding below or here on appeal has there been an assertion that Larna had any duty to inquire as to the effect of the settlement agreement upon her impending antenuptial agreement. Simply stated, she had no such duty, and without it, she could not be “charged with knowledge” of that agreement. Without a duty to inquire, negligent ignorance no longer has the same effect in law as actual knowledge. Cf. Applefield v. Commercial Standard Insurance Co., 176 So.2d 366, 377 (Fla. 2d DCA 1965) and authorities cited therein. Without some knowledge of the contents of the settlement agreement, Lar-na could not have joined in to defraud Ruth.

In addition to knowledge, a second element necessary to establish actionable fraud sub judice is intent. Charter Air Center, Inc. v. Miller, 348 So.2d 614 (Fla. 2d DCA 1977). Even with the requisite knowledge, there must be a conclusive showing of Larna’s intent to defraud, or a showing that intent is inapplicable. Nothing in the record herein evidences any indication of intent on Larna’s part to join in to defraud Ruth of her expectancy under the will and the settlement agreement. Even assuming arguendo that Larna had knowledge of the contents of the aforesaid agreement, the conclusion that she joined in her husband’s allegedly fraudulent activity must fail since no evidence of her intent to defraud was ever established.

Ruth has insisted throughout these proceedings that Larna possessed the requisite knowledge of the settlement agreement and that she conspired with Sam to defraud her of the proceeds of her entitlement under the will and the agreement. Ruth simply did not sustain her required burden of proof on the issue of fraud. It was her obligation to prove fraud, Larna was not obligated to disprove fraud. Biscayne Boulevard Properties v. Graham, 65 So.2d 858 (Fla.1953). The mere possibility that Larna and Sam may have conspired to defraud Ruth is too tenuous a pillar upon which to construct an elaborate theory of relief based on fraud. Moreover, even conceding that some fraud may have existed on Sam’s part, a careful review of the record reveals no substantial competent evidence linking Larna to that fraud.

In summary we conclude:

(1) that Ruth failed to establish a prima facie case of fraud against either Sam or Larna;

(2) that Larna did not have actual knowledge of the contents of the settlement agreement;

(3) that Larna could not be “charged with knowledge” of the contents of the settlement agreement since she had no duty prescribed by law to inquire into the substance of the agreement; and

(4)that it was error to find that she joined in to defraud Ruth since insufficient proof of her intent to do so was adduced below.

II.

The trial court’s novel remedy of imposing an equitable lien upon Larna’s dower must also fail for the reasons expressed earlier. Since Larna’s joinder in fraud was not conclusively established below, it was not appropriate to encumber her entitlement to dower by imposing an equitable lien thereon. Moreover, even had Ruth conclusively proved Larna’s joinder in fraud, we would nonetheless have disapproved engrafting an equitable lien on a widow’s legitimate right to dower under our law. Such a lien is simply not authorized under Florida law.

Dower is a right of the wife granted to her by law and vests on the death of the husband. Bowler v. Bowler, 159 Fla. 447, 31 So.2d 751 (1947). The inchoate right of dower is purely a prerogative of the legislature which may modify or abolish it at will. It is a personal right which may be exercised only by the widow. In Re Estate of Pearson, 192 So.2d 89 (Fla. 2d DCA 1966). Upon vesting at the death of the spouse, dower is not subject to, affected by, or altered by the acts of the husband, including, but not limited to, contracts which he may have entered into without the wife’s actual knowledge or consent. Our own Supreme Court has discussed dower in these words:

“It arises upon marriage, as an institution of the law. The inchoate right of dower has some of the incidents of property. It partakes of the nature of a lien or encumbrance. It is not a right which is originated by or is derived from the husband; nor is it a personal obligation to be met or fulfilled by him, but it is a creature of the law, is born at the marriage altar, cradled in the bosom of the marital status as an integral and component part thereof, survives during the life of the wife as such and finds its sepulcher in divorce.” Pawley v. Pawley, 46 So.2d 464, 472-73 n.2 (Fla.1950), cert. den. 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632 (1950).

Applying these principles sub judice, we conclude that Larna cannot be deprived of any portion of her dower as a result of the unilateral action of her husband in contracting away that right in a property settlement agreement with another. Her dower right is paramount over the restrictions contained in the settlement agreement. It cannot be contracted away without her consent. That provision of the settlement agreement requiring Larna to waive dower was not enforceable since it was an unjustified encroachment upon her dower right. That right may only be taken away or modified by her voluntary consent, by her own act or by statute. In Re Estate of Cardini, 305 So.2d 71 (Fla. 3d DCA 1974). Thus, the trial court’s action of engrafting an equitable lien upon Larna’s dower was not authorized by law and cannot be sustained on appeal.

Finally, even if Larna’s dower was vulnerable to her husband’s action, the equitable lien remedy was nonetheless erroneous under the circumstances of the instant case. There is no authority for the imposition of such a lien on a widow’s dower. No authority was cited by the court below justifying the imposition of such a lien and no authority has been cited by the parties in its support.

An equitable lien is generally a fixture of property law imposed when the complainant has no adequate remedy at law and without it, injustice would result. It is a right of a special nature over a particular property that may arise from a written contract which shows an intention to charge the particular property with a debt or obligation, or it may arise out of general considerations of right and justice as applied to the relations of the parties and the circumstances of their dealings in a particular case. Crane Co. v. Fine, 221 So.2d 145 (Fla.1969); Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (1925).

We need not review at any length the various applications of equitable lien law since such a lien is clearly not appropriate here. To our knowledge, an equitable lien has never been imposed in circumstances remotely similar to those arising in the case at bar and we would hesitate long and hard before extending its application to a widow’s right to dower. We are therefore unable to approve the equitable lien remedy employed with such ingenuity by the court below.

III.

Ruth’s contention that Sam’s marriage to Larna was a nullity since it was so permeated by fraud is without merit based upon our earlier conclusion that fraud was not established below. It is clear that one of the strongest presumptions of the law exists in favor of the validity of the last marriage. The party attacking the legality of the last marriage has the heavy burden of rebutting the presumption that such marriage is valid. Teel v. Nolan Brown Motors, 93 So.2d 874 (Fla.1957); Carey v. Lee, 360 So.2d 1111 (Fla. 3d DCA 1978). For the reasons expressed earlier in this opinion, Ruth has failed to sustain her required burden of proof on the issue of fraud. We therefore hold that Larna is Sam’s lawful widow and entitled to all of a widow’s rights under our law. The duration of Larna’s marriage to Sam is irrelevant to the issue of its validity. Whether the marriage endures for fifty years or five days has no effect upon its validity so long as all of the statutory requirements have been met at its inception.

We are not prepared, however, to go as far as Larna would have us do and declare the provisions of the settlement agreement requiring Sam’s new spouse to waive her dower in favor of Ruth’s bequest to be an unconstitutional burden on the right to marry. While we recognize that the right to marry is of fundamental importance for all individuals [Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)], it is not necessary to reach this issue in light of our holding that Larna could not be deprived of her dower right without her consent or in the absence of legislative action.

IV.

As to Ruth’s last point involving the imposition of attorneys’ fees and costs, we find no abuse of discretion in the trial court’s refusal to award attorneys’ fees and costs in her favor. Section 61.16, Florida Statutes (1971) does not authorize payment of attorneys’ fees to Ruth since this suit was not brought under Chapter 61.

The final judgment is reversed insofar as it purports to impose an equitable lien or any other encumbrance upon any portion of Larna Katz Donner’s election to take dower. In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part and remanded for further proceedings.

      . Our opinion decides only matters raised in this particular consolidated appeal. We have also today released separate opinions deciding a number of other pending appeals arising out of the probate of the Donner estate. These “Donner appeals” have been combined by this court into several distinct consolidated groups of appeals designed to facilitate their resolution. For convenience of reference, the appeals have been designated as follows:
      DONNER I 76-1919 364 So.2d 742
      76-2233
      DONNER II 76-2091
      76-2092
      76-2106 364 So.2d 753
      76-2232
      DONNER III 76-1902
      76-2196 364 So.2d 757
      DONNER IV 76-1078 364 So.2d 758
      DONNER V 77-75 364 So.2d 761
      DONNER VI 78-60 364 So.2d 763
      Reference will be made throughout these opinions to “Donner I,” “Donner II,” etc.

      . The estate, through its Executors, also filed an appeal from the final judgment (76-2034). That appeal has been voluntarily dismissed.

      . The trial court has helpfully provided us with extensive findings of fact. We have fully examined this voluminous record, however, for all facts pertinent to a proper disposition of this appeal.

      . § 732.23, Fla.Stat. (1971). This section has since been repealed and replaced by an entirely new probate code effective January 1, 1976 [Chapters 731 through 735, Fla.Stat. (1977)]. See Ch. 74-106, §§ 3 and 4, Laws of Fla., as amended Ch. 75-220, § 113, Laws of Fla. This consolidated appeal is governed by the provisions of the Florida Probate Code in effect prior to January 1, 1976.

      . Sam’s death sparked a bitter will contest among the various interested parties to the estate that continues unabated after five years. At his death, Sam left a widow (Lama), two ex-wives (Ruth and Beatrice Donner) and an adopted son of his first marriage (Edward). All of these interested parties have established claims against the estate. Priority on the various claims has been determined by the court below and is the subject of a separate consolidated appeal (“Donner II”). By our companion decision released today, Donner v. Anton, 364 So.2d 753 (Fla.3d DCA 1978), we have reversed the order on priorities in part and remanded the case for further proceedings below.

      . Sam’s first wife, Beatrice R. Donner, is not a party to this appeal though not for want of trying. She has vigorously attempted to intervene in this action, both here and below, but she has not been permitted to do so. She is however a party in several other companion opinions released this date. See Donner v. Anton, 364 So.2d 753 (Fla.3d DCA 1978) (“Donner II”); Adler v. Donner, 364 So.2d 758 (Fla. 3d DCA 1978) (“Dormer IV”); and Donner v. Donner, 364 So.2d 761 (Fla.3d DCA 1978) (“Donner V”).

      . The settlement agreement between Sam and Ruth provided as follows:
      “8. WILL PROVISION. The Husband shall, as part of the settlement, promptly make, execute, and keep in effect until his death, a will under which the Husband shall devise and bequeath unto his Wife, if living, the sum of One Million ($1,000,000.00) Dollars, free of all estate and inheritance taxes. Such bequest shall be payable regardless of whether or not the Wife shall have remarried prior to the death of the Husband. In the event the Husband shall remarry, the Husband agrees that he will, prior to any such marriage, enter into an antenuptial agreement whereby his intended wife will relinquish any claim of dower or right of inheritance which would, but for such antenuptial agreement, diminish the sum to be received by the present wife under the provisions of this paragraph." [Emphasis supplied]

      . Sam’s will of November 24, 1972, filed for probate stated:
      “I hereby make the following specific bequests .
      (c) To my former wife, Ruth Jean Donner, the sum of One Million ($1,000,000) Dollars, if she survives me.”

      . “I give, devise and bequeath all of the rest, residue and remainder of my estate, real, personal and mixed, of whatever nature and wherever situate, including without limitation, all property over which I may have the power of appointment, all lapsed legacies and bequests, to my beloved wife, Lama, if she survives me.”

      . This section was also repealed by Ch. 74-106, Laws of Fla. Lama’s election to take dower, filed on December 10, 1974, was properly made pursuant to the Probate Code in effect at the time of her husband’s death. In Re: Estate of Humphreys, 299 So.2d 595 (Fla.1974).
      Under the new Florida Probate Code, effective January 1, 1976, dower is expressly abolished [§ 732.111, Fla.Stat. (1977)] and replaced by the surviving spouse’s right to take an elective share [§ 732.201, Fla.Stat. (1977)].

      . Lama, a divorcee, had previously entered into a property settlement agreement with her former husband.

      . The decretal portion of the final judgment reads as follows:
      “The premises considered, it is:
      ORDERED AND ADJUDGED that:
      (1)Plaintiff, RUTH JEAN DONNER, be and she is hereby entitled to and shall recover from PAUL B. ANTON and WILLIAM I. DONNER, as Executors of the Estate of SAMUEL DONNER, deceased, the sum of $452,210.74 in satisfaction of her lawful claims against the Estate of SAMUEL DONNER, deceased.
      (2) That Plaintiff, RUTH JEAN DONNER, be and she is hereby declared entitled to and shall recover from PAUL B. ANTON and WILLIAM I. DONNER, as Executors of the Estate of SAMUEL DONNER, deceased, such further sum as shall be in an amount equal to the deficiency, if any, in the full satisfaction of that certain bequest made to the Plaintiff, RUTH JEAN DONNER, in Item 3(c) of the Last Will and Testament of SAMUEL DONNER, deceased.
      (3) Plaintiff, RUTH JEAN DONNER, be and she is hereby declared entitled to and shall recover from LARNA KATZ DONNER by way of equitable lien upon, and shall be equitably subrogated to, the dower award to LARNA KATZ DONNER in the Estate of SAMUEL DONNER, deceased, to the extent that the dower claim of LARNA KATZ DONNER shall reduce RUTH JEAN DONNER’S bequest of ONE MILLION DOLLARS, tax free. Provided, however, that such lien shall be satisfied and discharged in the event the money Judgment awarded against the Executors of the Estate of SAMUEL DONNER, deceased, in Item (2) above be satisfied in full.
      (4) The Court further reserves jurisdiction to enter such other orders as may be necessary to carry into effect the provisions of this Judgment.
      (5) That execution shall be withheld until further order of the Court.”

      . The trial court found that Sam willfully, knowingly and with conscious intent to do so, breached his settlement agreement by entering into the antenuptial agreement after having finalized the Sam-Ruth agreement:
      “The Court further finds that by virtue of the foregoing, the decedent, SAMUEL DONNER, willfully and knowingly and with the conscious intent to do so, breached his Settlement Agreement with his wife, RUTH JEAN DONNER, by his failure to comply with the terms of Paragraph 8 of the Settlement Agreement. That the willful conduct of SAMUEL DONNER knowingly entering into the Antenuptial Agreement with LARNA KATZ within a matter of days after having finalized his Separation Agreement with his wife RUTH, which Antenuptial Agreement was in direct contradiction and violation of the contractual agreement with his wife constituted a. fraud upon RUTH JEAN DONNER which has now been joined in by LARNA KATZ DONNER by virtue of her election to take dower and against the Will of her husband wherein she was named as the sole residual beneficiary.”
      This is not sufficient in our opinion to justify fraudulent activity on Sam’s part.

      . We cannot accept Ruth’s assertion, made in her brief and again at oral argument, that the trial court found that Lama had actual knowledge of the contents of the settlement agreement. Our reading of the final judgment convinces us that no such finding was ever made. Moreover, a careful review of the record reveals an absence of substantial competent evidence upon which to base such a finding.

      . Intent may not be required when constructive fraud is alleged. See generally 14 Fla.Jur. Fraud & Deceit § 31 (1957); Harrell v. Branson, 344 So.2d 604 (Fla. 1st DCA 1977). The final judgment did not distinguish between actual and constructive fraud and we need not do so here. The court below simply found that Sam’s actions “constituted a fraud”. See note 13 supra.

      . We note in passing that the trial court did not annul or otherwise invalidate Larna’s marriage to Sam on the ground of fraud. The final judgment was silent on this point.


author: HUBBART, Judge.

text:
    In re ESTATE of Samuel DONNER, Deceased. Edward David DONNER, Larna Katz Donner, Beatrice Donner, and Ruth Jean Donner, Appellants, v. Paul B. ANTON et al., Appellees.
    Nos. 76-2091, 76-2092, 76-2106 and 76-2232.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 22, 1978.

      Dubbin, Schiff, Berkman & Dubbin, Miami, Broad & Cassel and Lewis I. Horwitz, Bay Harbor Island, Sinclair, Louis, Siegel & Heath, Heller & Kaplan, Miami, Amy Linda Steele, North Miami Beach, for appellants.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and David L. Kline, Hollywood, Kelly, Black, Black & Kenny, Miami, for appellees.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   HUBBART, Judge.

This is a probate proceeding in which the trial court, after a full hearing, entered an order determining the nature and priority of dower and other claims filed against a decedent’s estate in the Circuit Court for the Eleventh Judicial Circuit of Florida. The decedent’s surviving spouse and the other claimants appeal.

A preliminary factual background for this case appears in our companion decision of Donner v. Anton, 364 So.2d 742 (Fla.3d DCA 1978) (“Donner I”). Additional relevant facts follow.

There are four principal claimants against the estate of the decedent Samuel Donner: Larna Donner, Ruth Donner, Beatrice Donner, and Edward Donner — all of whom are involved in this appeal. (1) Lar-na Donner [decedent’s surviving spouse and third wife] has perfected a valid dower claim against the estate herein by electing to take dower against the decedent’s last will and codicil pursuant to Section 731.35, Florida Statutes (1971), which was then in effect at the time of the decedent’s death.

(2) Ruth Donner [decedent’s second wife] has a valid claim against the estate for $452,210.74 which represents the amount due and owing by the decedent at his death to Ruth for lump sum alimony arrearages and other bills which the decedent was required to pay under a prior divorce decree involving the decedent and Ruth Donner. In addition, Ruth Donner claims an equitable lien on Larna Donner’s dower to satisfy, if necessary, Ruth’s one million dollar legacy under the decedent’s last will due to an alleged fraud committed by Larna and the decedent in breaching a certain property settlement agreement between the decedent and Ruth Donner, as more fully discussed in Donner v. Anton, 364 So.2d 742 (Fla.3d DCA 1978) (“Donner I”).

(3) Beatrice Donner [decedent’s first wife] and (4) Edward Donner [decedent’s adopted son] have valid claims against the estate herein for one third each of the decedent’s net estate. These claims are based on a March 2, 1959, divorce settlement agreement later incorporated into a divorce decree involving the decedent and Beatrice Donner in which the decedent contracted to will Beatrice and Edward Donner the above portions of his estate, an agreement which he breached by failing to so provide in his last will and codicil. By separate suit previously instituted for specific performance on the above contract to make a will, these claims have been adjudicated valid and enforceable against the estate. Donner v. Donner, 302 So.2d 452 (Fla.3d DCA 1974), cert. denied 314 So.2d 151 (Fla.1975), appeal dismissed 314 So.2d 589 (Fla.1975).

After a full hearing, the trial court entered an order concluding that Larna Donner’s dower rights were prior and paramount to all other claims subject only to an equitable lien in favor of Ruth Donner to satisfy, if necessary, Ruth’s one million dollar legacy under the decedent’s will. All other claimants were held to be judgment creditors of the estate of equal priority. Beatrice and Edward Donner’s claims were determined to be one third of the net distributable estate.

I

We are first met with Larna Donner’s contention that the trial court erred in its order on priorities in imposing an equitable lien upon her dower in favor of Ruth Donner. This is the same contention which was made in our companion decision of Donner v. Anton, 364 So.2d 742 (Fla.3d DCA 1978) (“Donner I”). In that case we held that this contention had merit and struck the equitable lien on Larna Donner’s dower. For the reasons expressed in that decision, that portion of the order determining priorities herein which imposes an equitable lien upon Larna Donner’s dower is also stricken. We hold that no equitable lien or encumbrance of any kind can be imposed upon the surviving spouse’s dower under the facts of this case.

II

We now come to the central issue on this appeal, namely, the priority of the contesting parties’ claims against the decedent’s estate. Ruth, Beatrice and Edward Donner contend for differing reasons that the trial court erred in its order on priorities by treating them all as judgment creditors of equal priority against the estate behind Larna Donner’s dower claim. On this aspect of the case, Larna Donner and the estate’s personal representative, Paul B. Anton, urge that the trial court committed no error.

Ruth Donner contends that she is a judgment creditor against the estate and that her claims herein should come ahead of Beatrice and Edward Donner on the ground that the latter occupy the same position as legatees of the estate; she also urges that her claim is prior to Larna Donner’s dower. Beatrice and Edward Donner jointly contend that they are judgment creditors of the estate with priority over Larna Donner’s dower and Ruth Donner’s claims on the authority of Donner v. Donner, 302 So.2d 452 (Fla.3d DCA 1974), supra.

We hold that (1) Larna Donner’s dower is prior and paramount to the claims of all the contesting parties on this appeal, which dower is unencumbered by any equitable lien in favor of Ruth Donner; (2) Ruth Donner is a judgment creditor against the estate in the amount of $452,210.74 which represents the amount the decedent was in arrearage at the time of his death on alimony and other payments due under the prior divorce decree involving the decedent and Ruth Donner; this claim comes after Larna Donner’s dower but prior to Beatrice and Edward Donner’s claims; (3) Ruth Donner is a legatee of the estate on the one million dollar legacy bequeathed to her under the decedent’s will; this claim comes after Lar-na Donner’s dower and Ruth Donner’s $452,210.74 claim but is of equal priority with Beatrice and Edward Donner’s claims; (4) Beatrice and Edward Donner must be treated the same as legatees of the estate just as if the decedent had made the legacies to them in his will as he had previously contracted that he would; these claims come after Larna Donner’s dower and Ruth Donner’s $452,210.74 claim but are of equal priority with Ruth Donner’s one million dollar legacy. The trial court’s order on priorities on this aspect of the case is therefore affirmed in part and reversed in part as indicated above.

A

For reasons more fully developed in our companion decision of Donner v. Anton, 364 So.2d 742 (Fla.3d DCA 1978) (“Donner I”), it is clear that Larna Donner’s dower is prior and paramount to the claims of all the contesting parties on this appeal. Her dower is unencumbered by any equitable lien in favor of Ruth Donner and must come prior to satisfying any of the legatees or judgment creditors in this cause. Henderson v. Usher, 125 Fla. 709, 170 So. 846 (1936); Goodwin v. King, 31 Fla. 525, 13 So. 108 (1893).

B

Ruth Donner is clearly a judgment creditor against the decedent’s estate in the amount of $452,210.74 because this represents the amount the decedent was in ar-rearage at the time of his death on alimony and other payments due under the prior divorce decree involving the decedent and Ruth Donner. Indeed, no party on this appeal seriously contests Ruth Donner’s claim on this score. The trial court was accordingly correct in treating Ruth Donner as a judgment creditor of the estate as to the above-stated sum of money subordinate to Larna Donner’s dower.

By our companion decision in Donner v. Anton, 364 So.2d 742 (Fla.3d DCA 1978) (“Donner I”), Ruth Donner has no equitable lien against Larna Donner’s dower to satisfy Ruth Donner’s one million dollar legacy under the decedent’s will. As to this legacy, absent the above equitable lien, Ruth Donner is clearly a legatee of the estate and must take after Larna Donner’s dower but on an equal basis with Beatrice and Edward Donner’s claims. The trial court accordingly erred in treating Ruth Donner’s legacy as a judgment claim against the estate.

C

Beatrice and Edward Donner must be treated the same as legatees of the estate just as if the decedent made the legacies to them in his will as he had previously contracted to do in the 1959 separation agreement with Beatrice Donner. Surely, these two should not stand in a better position as creditors of the estate when, as here, the decedent failed to do that which he contracted to do. He contracted to make them legatees of the estate and when he failed to do so, both Beatrice and Edward Donner sued for specific performance on the contract. They prevailed in their suit; the judgment was affirmed on appeal. They are accordingly entitled to specific performance on the contract to make a will which in effect puts them in the same category as legatees of the estate. Erwin v. Mark, 105 Mont. 361, 73 P.2d 537 (1937); In re Hoyt’s Estate, 174 Misc. 512, 21 N.Y.S.2d 107 (Sur.Ct.1940). As such, their claims must be treated as having equal priority with the one million dollar legacy of Ruth Donner, but of subordinate priority to Lar-na Donner’s dower and Ruth Donner’s $452,210.74 claim. The trial court therefore erred in treating the subject claims as judgment claims against the decedent’s estate.

We are unpersuaded by Beatrice and Edward Donner’s contention that this court’s decision in Donner v. Donner, 302 So.2d 452 (Fla.3d DCA 1974), supra, is res judicata in their favor on the priorities issue now before this court. That issue was in no way involved in the prior Donner case and this court’s opinion therein neither decided the issue nor intimated any views thereon. 'The case decided the validity, not the priority, of Beatrice and Edward Donner’s claims against the decedent’s estate herein.

III

We have carefully examined the remaining contentions of the appellants herein as against the record and the applicable law and find them to be without merit. We have particularly examined Beatrice Donner’s contention that the trial court improperly computed her valid claim of a one third share in the decedent’s net estate. Her cited authorities, however, do not convince us that any error was committed by the trial court on this aspect of the case.

The order appealed from is affirmed in part and reversed in part; the cause is remanded for further proceedings consistent with the holdings of this court as indicated above.


text:
    In re ESTATE of Samuel DONNER, Deceased. Paul B. ANTON, Appellant, v. William I. DONNER, Appellee.
    Nos. 76-1902, 76-2196.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 22, 1978.
    Abrams, Anton, Robbins, Resniek, Schneider & Mager and David L. Kline, Hollywood, Dubbin, Schiff, Berkman & Dubbin and Evan Langbein, Miami, for appellant.
    Amy Linda Steele, North Miami Beach, Colson & Hicks, Susan Goldman, Miami, for appellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   KEHOE, Judge.

This is an appeal from an order dismissing the appellant’s complaint with prejudice. We reverse and remand with directions to reinstate the complaint.

The pertinent facts follow: Paul B. Anton, acting as personal representative of the Estate of Samuel Donner, filed suit against the estate’s remaining personal representatives, William I. Donner and Charles Donner, for an accounting of certain profits derived by business interests controlled by the Donners. Anton alleged that these profits were earned in part by loans from another Donner enterprise in which the decedent had a substantial interest. The complaint alleged that as a result of these loans, the assets of the estate have been depleted accordingly, and the Donners have failed to repay the estate for its shares of the loans made, compelling Anton to borrow money at high rates of interest to meet the pressing cash needs of the estate. The complaint further alleged that the Donners breached their fiduciary duty to the estate, acted in a manner detrimental to its interests in order to serve their own personal interests, and wrongfully divested and used funds that were rightfully estate property. The appellant requested that the trial court require the Donners to account for the profits derived, at least in part, by the use of funds belonging to the estate and to enter judgment for all such sums due and owing.

The appellee moved to dismiss the complaint for failure to state a cause of action upon which relief can be granted. Without specifying the grounds for its ruling, the trial court granted the motion to dismiss and dismissed the complaint with prejudice and without leave to amend.

Although the trial court did not state its reasons for dismissing the appellant’s complaint with prejudice, we conclude that it erred on whatever ground it premised its ruling since the appellant had a right to an accounting under the circumstances of this case.

It appears from our review of the record that the trial court dismissed the complaint on the sole ground that it was a collateral attack on a prior order issued by the same judge sitting in the probate division on the proceeding involving the administration of the Donner Estate and the subsequent will contest among the several claimants of the estate assets. [Donner v. Anton, 364 So.2d 753 (Fla.3d DCA 1978) (“Donner II”). That earlier order was a denial of the appellant’s petition to remove the appellee, William I. Donner, as personal representative of the estate. The appellee contended that the denial of the earlier petition was res judicata as to the issues raised in this case. We disagree.

We consider the appellant’s request for an accounting to be a legitimate action in equity and entitled to separate treatment apart from the probate aspects of the case. We find nothing in the probate proceedings which would preclude a separate suit requesting an accounting.

The appellee’s reliance upon our decision in Security Trust Company v. Cannon, 165 So.2d 834 (Fla.3d DCA 1964) is misplaced. Since the reorganization of the judicial system was implemented in 1973, all probate proceedings are under the jurisdiction of the Circuit Courts. The court below had subject matter jurisdiction over the appellant’s complaint notwithstanding the concurrent administration of the Donner Estate in the probate division.

In any event, the trial court cannot dismiss the complaint on the ground of res judicata. It is clear that res judicata is an affirmative defense which is not properly raised by a motion to dismiss but should be pled as part of the answer. Florida Rules of Civil Procedure 1.110(d); Hough v. Menses, 95 So.2d 410 (Fla.1957); and United States Rubber Company v. Lucky Nine, Inc., 159 So.2d 874 (Fla.3d DCA 1964). The appellant is entitled to seek an accounting of the profits allegedly derived in part out of the corpus of the estate.

Reversed and remanded with directions to reinstate the complaint.

      . Charles Donner was later permitted to withdraw as personal representative and is not a party to this appeal.


text:
    In re ESTATE of Samuel DONNER, Deceased. Samuel I. ADLER, Howard Mescon and Charles Donner, Appellants, v. Paul B. ANTON et al., Appellees.
    No. 76-1078.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.

      Kelly, Black, Black & Kenny, Cushman & Cushman, Miami, for appellants.
    Sinclair, Louis, Siegel & Heath and Norman A. Sand, Heller & Kaplan, Miami, Broad & Cassel and Lewis I. Horwitz, Bay Harbor Island, Abrams, Anton, Robbins, Resnick & Schneider and David L. Kline, Hollywood, for appellees.
    Before HAYERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   HUBBART, Judge.

The central issue involved on this appeal is whether a trial court in a probate proceeding may reform the terms of a security agreement contracted for by the estate’s legal representative for the purpose of closing on a buy-sell agreement entered into by the decedent during his lifetime, when the effect of such reformation is to materially alter the purchase terms of the buy-sell agreement. Absent a showing of fraud, mistake or overreaching involving the buy-sell agreement, we hold that the trial court has no such authority. Accordingly, we reverse.

The facts of this case are undisputed and are in part disclosed in our prior decision of Donner v. Anton, 347 So.2d 436 (Fla. 3d DCA 1977). The decedent Samuel Donner and certain of his business associates, Samuel I. Adler, Charles Donner and Howard Mescon, were owners of certain undivided interests in rental apartment houses placed in various trusts. During his lifetime, the decedent executed a buy-sell agreement with his above business associates giving such associates an option to buy his interest in these trusts in the event of the decedent’s death. The agreement provided for an agreed valuation of the trust properties and for purchase terms of 10% of the decedent’s interest [as thus valuated] due at closing, 15% due one year later and 75% due in monthly installments over the next 10 years. The credit or unpaid portion of the purchase price was to be secured by a lien on the interest being purchased. Periodic updates containing revised valuations of the trust properties were subsequently made by amendment to the said buy-sell agreement.

On January 25, 1973, the decedent died, and the following month the decedent’s business associates exercised their option to purchase the decedent’s interest in the trust properties at the agreed upon purchase terms. The decedent’s estate through its legal representative petitioned the Circuit Court for the Eleventh Judicial Circuit of Florida [where the estate was in probate] for leave to sell the deceased’s interest in the trust properties in accord with the buy-sell agreement. The trial court granted the petition over the objection of Beatrice Donner, the first of the decedent’s ex-wives, who in turn appealed such order to this court.

There being no supersedeas posted on Beatrice Donner’s appeal, the decedent’s estate representative and the decedent’s business associates proceeded to close in escrow on the buy-sell agreement. As part of the closing, the parties negotiated three security agreements in which each of the said business associates executed a promissory note, as part of the purchase price for the decedent’s interest in the land trust, collat-eralized by the property purchased by said associates. By such agreements, the collateral was fully protected against transfer, encumbrance or modification without the consent of the estate [such consent not to be unreasonably withheld], except for transactions among the business associates themselves or their estates. We view these security agreements as constituting a lien on the collateralized property to the extent necessary to satisfy the unpaid portion of the note. Such provision was in full compliance with the terms of the buy-sell agreement. The estate filed a subsequent petition to confirm the sale.

On May 10, 1976, the trial court confirmed the sale, but reformed the above security agreements employed by the parties to close on the buy-sell agreement. The court required that the security agreements be amended to provide that none of the collateralized land trusts which were the subject of the purchase under the buy-sell agreement could be terminated or dissolved without first paying in full on the promissory note executed in payment for such trusts. This amendment supersedes the more than adequate collateral protection provisions in the security agreements and directly conflicts with the purchase terms of the buy-sell agreement. In effect, the amendment requires a pre-payment in full on the promissory note before a release of any of the collateralized property on the decedent’s land trusts can take place — in violation of the installment purchase terms required by the buy-sell agreement [as represented by the promissory note] whereby portions of the collateralized property would be subject to transfer when no longer necessary to guarantee the unpaid balance of the note. Beatrice Donner appealed that portion of the order confirming the sale on the buy-sell agreement. Samuel I. Adler, Charles Donner and Howard Mescon appealed that portion of the order which purports to reform the terms of the above security agreements.

The court in Donner v. Anton, 347 So.2d 436 (Fla. 3d DCA 1977), affirmed the trial court in its orders authorizing the sale of the decedent’s interest in the land trusts in question and the order confirming the sale. Specifically, this court rejected a contention made by Beatrice Donner that the sale could not take place for any sum less than the full cash value of the property in question. We are now faced with the instant appeal which questions a portion of the order confirming the sale under the buy-sell agreement, which order purports to reform a portion of the security agreement used to close on the buy-sell agreement.

The law is well-settled that a court of equity has no authority to reform a contract in the absence of a showing of fraud, mistake, or overreaching. Freitag v. Simon, 171 So.2d 918 (Fla. 3d DCA 1965). This rule applies with equal force to a probate court when dealing with a contract made by the decedent during his lifetime. Atkinson on Wills 657-59 (2d ed. 1953). In our view, the effect of reforming the security agreement herein was to directly alter the terms of the decedent's buy-sell agreement without any prerequisite showing of fraud, mistake, or overreaching. The required amendment to the security agreement provides in effect that the decedent’s business associates [appellants herein] must pre-pay the entire promissory note as a prerequisite to acquiring any beneficial interest in any of the purchased property. Such an amendment directly conflicts with the installment purchase terms under the buy-sell agreement whereby portions of the collateralized property would be subject to release when no longer necessary to secure the unpaid balance of the note. The trial court sitting in probate had no authority to so alter the terms of such buy-sell agreement by this device.

The estate’s personal representative and the other appellees herein do not deny that the effect of reforming the security agreements as ordered by the trial court was to alter the purchase terms of the buy-sell agreement. They further make no contention that the buy-sell agreement was the product of fraud, mistake, or overreaching. They contend, however, that the trial court had the authority to act as it did in order to protect the estate against a sale of estate assets upon certain unfavorable terms. See Fla.Stat. § 733.30 (1973). We disagree. Nothing in the past or present probate code gives a trial court sitting in probate the authority to reform an otherwise valid contract made by the decedent during his lifetime in which certain of the decedent’s assets are transferred to other parties. Moreover, we have previously upheld the validity of the buy-sell agreement herein against the contention that the sale authorized by the agreement should not be permitted for any sum less than full cash value. Donner v. Anton, 347 So.2d 436 (Fla. 3d DCA 1977). We were of the opinion then, and are still of the opinion, that the agreement in question is valid, and must be enforced by the courts according to its plain terms.

The order under review is reversed insofar as it reforms the terms of the security agreements. The cause is remanded to the trial court with directions to strike the court-ordered amendment to the security agreements herein.

Reversed.


text:
    In re ESTATE of Samuel DONNER, Deceased. Beatrice Rosalie DONNER, Appellant, v. Charles N. DONNER et al., Appellees.
    No. 77-75.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.

      Sinclair, Louis, Siegel & Heath, Miami, for appellant.
    Amy Linda Steele, North Miami Beach, Heller & Kaplan, Miami, Abrams, Anton, Robbins, Resnick & Schneider and David L. Kline, Hollywood, Broad & Cassel and Lewis I. Horwitz, Bay Harbor Island, for appel-lees.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   KEHOE, Judge.

This is an interlocutory appeal from an order awarding interim attorneys’ fees of $35,000 to the attorneys for Beatrice R. Donner for their efforts in establishing her claim against the Estate of Samuel Donner. See Donner v. Donner, 302 So.2d 452 (Fla. 3d DCA 1974), cert. denied, 314 So.2d 151 (Fla.), appeal dismissed, 314 So.2d 589 (Fla.1975). This interim award was made pursuant to an order by the Florida Supreme Court awarding attorneys fees to Beatrice in an amount to be determined by the circuit court. Beatrice appeals contending that the interim fee awarded was too low.

The circuit court based its award on quantum meruit for the reasonable value of the services performed by Beatrice’s attorneys at the trial level and later on appeal. It rejected her contention that she was entitled to an interim award of one-third of her expected share of the Donner Estate in accordance with a contingency fee contract that she entered into with her attorneys. She maintained that the estate was obligated to reimburse hér for the value of her attorneys fees under her contingency fee contract as provided for in a 1959 separation agreement she made with the decedent. This agreement required the decedent and his successors to reimburse appellant for all of her costs and expenses, including attorneys fees, incurred in her enforcement action against the estate.

The circuit court expressly rejected appellant’s contention that the estate was required to reimburse her at this time with an interim fee for the legal services she contracted to pay for in her contingency fee contract (i. e. a fee equivalent to one-third of the amount recovered). It ruled instead that her legal fees were to be awarded solely and exclusively upon the basis of a fair and reasonable service for the legal efforts expended in Donner v. Donner, supra. It did not permit any expert testimony regarding a reasonable fee based upon the contingency fee contract.

After giving careful consideration to each of the appellant’s arguments, we affirm the circuit court’s order awarding attorneys fees on the basis of quantum meru-it. We conclude that no abuse of discretion has been shown.

The record shows that the circuit court had before it expert testimony in support of an interim attorneys’ fee award ranging from $30,000 to $200,000. Although the appellant’s attorneys themselves estimated the reasonable value of their services to be a minimum of $250,000, one expert for the estate testified that he did all of the appellate work in Donner v. Donner, supra, for $6000. We cannot say that the lower court’s award was unreasonable and an abuse of discretion in light of this testimony. Klarish v. Cypen, 343 So.2d 1288 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 515 (Fla.1978).

Furthermore, we approve the trial court’s approach in determining an interim fee in quantum meruit. To follow Beatrice’s suggestion and compute an interim attorneys’ fee on the basis of a contingency fee award of one-third of the amount that she may receive at the conclusion of these proceedings is, at best, speculative and could result in payment of an excessive fee. Such a fee should not be computed on an amount unknown at the present time.

We note with approval that the circuit court has reserved jurisdiction to reassess the amount of the appellant’s award when her ultimate recovery becomes known. At that time the true value of her attorneys’ services will be more readily apparent. The nature of her contingency fee contract may properly be weighed in determining the amount of a reasonable fee. It is, however, only one of a number of criteria which should be considered. Universal Underwriters Ins. Co. v. Gorgei Enterprises, Inc., 345 So.2d 412 (Fla. 2nd DCA 1977); cf. Dade County v. Oolite Rock Company, 311 So.2d 699 (Fla. 3d DCA 1975) (holding that proper guidelines were not utilized in determining attorneys fees).

Further, it is our opinion that expert testimony based upon the nature of the attorneys’ fees contract should be allowed when determining the reasonableness of the final award. At present we cannot say that the lower court abused its discretion in awarding an interim attorneys fee of $35,-000 based solely upon quantum meruit.

Affirmed.


author: PER CURIAM.

text:
    In re ESTATE of Samuel DONNER, Deceased. Edward David DONNER, Appellant, v. Paul B. ANTON, as Co-Personal Representative of the Estate of Samuel Donner, Deceased, Appellee.
    No. 78-60.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 22, 1978.
    Dubbin, Schiff, Berkman & Dubbin, Miami, for appellant.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and David L. Kline, Hollywood, for appellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   PER CURIAM.

Affirmed. § 731.011, Florida Statutes (1977).