               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

DOMINIC HEISTON, as personal                 )
representative for the Estate of Dylan       )
Matthew Heiston, deceased,                   )
                                             )
              Appellant,                     )
                                             )
v.                                           )         Case No. 2D16-3417
                                             )
SCHWARTZ & ZONAS, LLP,                       )
                                             )
              Appellee.                      )
                                             )

Opinion filed July 7, 2017.

Appeal from the Circuit Court for Collier
County; Vincent Murphy, Acting Circuit
Judge.

P. Brandon Perkins and Kristen D. Perkins,
of Rogers Towers P.A., Fort Myers, for
Appellant.

Joseph D. Stewart of Joseph D. Stewart,
P.A., Naples, for Appellee.


WALLACE, Judge.

              This case involves a dispute between two law firms regarding the

allocation of an attorney's contingent fee earned after the settlement of a wrongful death

claim. Dominic Heiston, as personal representative of the Estate of Dylan Heiston,

deceased, appeals the trial court's order that awarded the entire fee to Schwartz &

Zonas, LLP, the attorneys for the decedent's statutory survivors. Because the trial court
erred in awarding the entire fee to Schwartz & Zonas and nothing to the law firm that

represented the personal representative, we reverse.

                   I. THE FACTS AND PROCEDURAL BACKGROUND

              Dylan Heiston, who was sixteen years old, was killed in an automobile

accident on July 31, 2014. Rasjia Heiston and Kristina Heiston, Dylan's parents, were

his statutory survivors under the Florida Wrongful Death Act, sections 768.16-.26,

Florida Statutes (2014) (the Act). Dylan had an older brother, Dominic Heiston. Neither

Rasjia nor Kristina were able to qualify as the personal representative of Dylan's estate.

Thus, Dominic, who did qualify, was appointed as the personal representative. The law

firm of Morgan & Morgan, P.A., represented Dominic in his capacity as personal

representative.1

              Morgan & Morgan filed an action for wrongful death on Dominic's behalf

against the driver of the other automobile involved in the accident. Ultimately, all claims

arising from the accident were settled, and the lawsuit was dismissed after Morgan &

Morgan received payments from two different insurance companies. Allstate, the

insurer for the other driver involved in the accident, paid its policy limits of $100,000.

Century 21, the carrier that provided uninsured motorist's coverage under a policy that

covered Dylan, paid its policy limits of $100,000 plus a $5000 death benefit. Thus, the

total recovery was $205,000. Morgan & Morgan agreed to reduce its contingent fee

from thirty-three and one-third percent of the recovery to twenty-five percent of

$200,000 or $50,000. Morgan & Morgan did not claim a fee on the $5000 death benefit.



              1
               In this opinion, we will refer to the members of the Heiston family by their
first names to avoid confusion.



                                             -2-
              Schwartz & Zonas had a contingent fee agreement with Dylan's parents,

Rasjia and Kristina. Schwartz & Zonas attempted—unsuccessfully—to have Rasjia

appointed as the personal representative of Dylan's estate. When it became apparent

that Rasjia could not qualify, Schwartz & Zonas attempted to have an unrelated third

party appointed. This attempt also failed. Although Schwartz & Zonas did not represent

the personal representative, it actively pursued the wrongful death claim. Schwartz &

Zonas sent demand letters to the two insurance companies and received settlement

checks. These checks were never deposited. Schwartz & Zonas also filed a wrongful

death action on behalf of Rasjia and Kristina. In the complaint, Schwartz & Zonas

alleged on behalf of their clients—inaccurately—that Rasjia had been appointed as the

personal representative of Dylan's estate. Notably, there was no dispute between

Rasjia and Kristina concerning their respective shares of the amount of the recovery

payable to the survivors; each claimed one-half of the proceeds. Ultimately, Rasjia and

Kristina would each disclaim any interest in the proceeds of the wrongful death recovery

with the result that the entire share of the survivors will be distributed to their son,

Dominic.

              After the wrongful death claim was settled, Dominic filed a final accounting

and petition for discharge. The estate had no assets other than the $205,000 proceeds

of the wrongful death claim. The final accounting reflected disbursements as follows:

$3878.26 for the payment of funeral expenses, $4621.74 for the probate attorney's fees

and costs to date, and $50,190.51 to Morgan & Morgan for their fees and costs. In the

petition for discharge, Dominic proposed to pay himself a personal representative's fee

of $6150 and an additional $2078.26 to the probate attorney for fees and costs. The




                                             -3-
total of the disbursements already paid and proposed to be paid left a balance of

$138,081.23. Dominic proposed to distribute this balance in equal shares to Rasjia and

Kristina. The only person or entity that filed an objection to the final accounting or to the

proposed distribution of the estate assets was Schwartz & Zonas.

              Schwartz & Zonas objected to the disbursement of $50,190.51 in fees and

costs to Morgan & Morgan. In support of their objection, Schwartz & Zonas alleged:

              All assets as stated in the Amended Inventory were collected
              by the Law Offices of Schwartz & Zonas LLP during their
              lawful representation of both Rasjia Heiston and Kristina
              Heiston. As Morgan & Morgan PA performed no duties in
              the collection of Estate Assets, it is not entitled to an attorney
              fee.

Schwartz & Zonas also filed a petition for an order authorizing payment of attorney's

fees. In this petition, Schwartz & Zonas requested payment of one-third of $205,000 or

$68,333.34. Schwartz & Zonas based their attorney's fee claim on the contingent fee

agreement between the firm and Dylan's parents.

                            II. THE TRIAL COURT'S RULING

              The trial court conducted an evidentiary hearing on the objection and the

separate fee petition. At the conclusion of the hearing, Schwartz & Zonas argued that

they were "entitled to the lion's share of the attorney fees" because (1) Schwartz &

Zonas represented the parents, who were the real parties in interest; (2) Morgan &

Morgan had a disqualifying conflict of interest because they did not represent the

parents; (3) Allstate and Century 21 had tendered the checks for payment to Schwartz

& Zonas before Morgan & Morgan's involvement; (4) Morgan & Morgan was not

authorized to settle the case because it did not represent the parents; and (5) Schwartz

& Zonas did the majority of the legal work in obtaining the proceeds of the wrongful



                                            -4-
death claim arising from Dylan's death. In conclusion, Schwartz & Zonas modified its

objection to the disbursement to Morgan & Morgan by suggesting that Schwartz &

Zonas should receive eighty percent of the total fee, leaving twenty percent of the fee

for Morgan & Morgan.

              After the hearing, the trial court entered an order sustaining Schwartz &

Zonas's objection to the final accounting and petition for discharge. Despite Schwartz &

Zonas's suggestion that it receive eighty percent of the fee and Morgan & Morgan

collect the remaining twenty percent, the trial court authorized payment of a $50,000 fee

and directed that the entire amount be paid to Schwartz & Zonas. This appeal by

Dominic followed.

                              III. THE APPLICABLE LAW

              The legal principles applicable to the prosecution and settlement of

wrongful death claims in Florida are well settled:

              By statute, the personal representative is the only party with
              standing to bring a wrongful death action to recover
              damages for the benefit of the decedent's survivors and the
              estate. § 768.20, Fla. Stat. (2005); see also Wiggins v.
              Estate of Wright, 850 So. 2d 444, 446 (Fla. 2003). The
              survivors may not bring separate legal actions and are
              required to participate in the single legal action filed by the
              estate. Wiggins, 850 So. 2d at 446. However, the survivors
              are still entitled to be represented by counsel of their choice.
              Id. at 449.

Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Grp., 64 So. 3d 1187,

1191 (Fla. 2011). "Under Florida's Wrongful Death Act, . . . . [t]he personal

representative has the exclusive authority to conduct litigation and settle all claims. The

survivors are not parties to the wrongful death litigation, even when the claims are

brought for their benefit." Kadlecik v. Haim, 79 So. 3d 892, 893 (Fla. 5th DCA 2012)



                                            -5-
(citations omitted); see also § 768.20, Fla. Stat. (2014) ("The action shall be brought by

the decedent's personal representative, who shall recover for the benefit of the

decedent's survivors and estate all damages, as specified in this act, caused by the

injury resulting in death."). The statutory power to settle a wrongful death action is

vested in the personal representative. Thompson v. Hodson, 825 So. 2d 941, 949, 953

(Fla. 1st DCA 2002). The personal representative has the power to hire counsel to

carry out his or her duties with regard to wrongful death claims. In re Estate of

Catapane, 759 So. 2d 9, 11 (Fla. 4th DCA 2000).

              The principles applicable to the allocation of attorney's fees to be paid

from the proceeds of a wrongful death claim when one or more of the survivors are

represented by separate counsel are also well established in Florida law. With regard

to the payment of "Litigation Expenses," section 768.26 of the Act provides for the

payment of the attorney hired by the personal representative of the decedent's estate as

follows:

                     Attorneys' fees and other expenses of litigation shall
              be paid by the personal representative and deducted from
              the awards to the survivors and the estate in proportion to
              the amounts awarded to them, but expenses incurred for the
              benefit of a particular survivor or the estate shall be paid
              from their awards.

See also Catapane, 759 So. 2d at 11 (quoting the statute). In the Catapane case, the

Fourth District worked out the principles controlling the allocation of the contingent fee

paid from the recovery on a wrongful death claim where one or more of the survivors

are represented by separate counsel. Id. at 11-12. The Florida Supreme Court has

expressly agreed with the Catapane court's analysis. Wiggins v. Estate of Wright, 850




                                            -6-
So. 2d 444, 447 (Fla. 2003). In the Wiggins case, the court concluded its discussion of

the case before it by summarizing these principles as follows:

                       When survivors have competing claims, and are
              represented by separate attorneys, awarding attorneys' fees
              from a wrongful death suit in a manner commensurate with
              the attorneys' work properly provides for proportional
              payment of attorneys' fees by all survivors, out of their
              respective awards. For example, if there are two competing
              survivors represented by separate attorneys throughout the
              litigation who successfully prosecute a claim to judgment,
              the fees should ordinarily be awarded out of the respective
              recoveries. This will always be subject to the caveat that
              where it can be demonstrated that one attorney played a
              greater role in securing the total award, a larger fee may be
              proper. In no instance, however, should a survivor be
              penalized for hiring separate counsel by having to pay a fee
              for recovery of the same amount twice.

                      We agree with and approve of the Catapane method
              of allocating fees, whereby a trial court determines the
              attorneys' fee awards by compensating the personal
              representative's attorney out of the total settlement
              proceeds, reduced by the amount necessary to reasonably
              compensate the other survivors' attorneys for their services
              in representing those survivors in the proceedings.

Id. at 450. Later, in the Wagner case, the court held that section 768.26 of the Act

applies to instances where a wrongful death claim is settled presuit and not just to

cases where an action has been filed or litigated. 64 So. 3d at 1192. In Wagner, the

court once again approved the Fourth District's analysis in Catapane. Id. at 1192-93.

                                    IV. DISCUSSION

              The trial court's order in this case does not mention any of the provisions

of the Act. The order does not cite to Wagner, Wiggins, Catapane, or any other

pertinent case law. For these reasons, it has been difficult for us to discern the legal

basis underlying the trial court's ruling that denied the payment of any portion of the




                                           -7-
contingent fee in this case to Morgan & Morgan. The trial court seems to have decided

to prefer Schwartz & Zonas for payment of the entire fee because they became active in

the matter before Morgan & Morgan. In basing its ruling on which law firm was the first

to act, the trial court overlooked that Morgan & Morgan's client, the personal

representative of the estate, was the sole party who was authorized under the Act to

pursue the claim, not Rasjia or Kristina. The trial court erred in preferring Schwartz &

Zonas for payment of the entire contingent fee simply because they were the first to

contact the insurance companies and to file a lawsuit.

              We reverse the order under review and remand this case to the trial court

for further proceedings consistent with this opinion. On remand, the trial court shall

reconsider the allocation of the $50,000 attorney's fee between the two law firms based

on the provisions of the Act and the principles stated in Wagner, Wiggins, Catapane,

and other pertinent case law. Thus, the trial court must award the full $50,000

contingent fee to Morgan & Morgan and then reduce the fee award in a manner

commensurate with the value, if any, of the services that Schwartz & Zonas provided to

the statutory survivors, Rasjia and Kristina. See Garces v. Montano, 947 So. 2d 499,

504 (Fla. 3d DCA 2006) (reversing the trial court's order allocating fees from the

settlement of an action for wrongful death and remanding for further proceedings

pursuant to Wiggins).

              Reversed and remanded for further proceedings consistent with this

opinion.


SLEET and LUCAS, JJ., Concur.




                                           -8-
