MARVIN AND KAY LICHTMAN FOUNDATION v. ESTATE OF LICHTMAN No. 99-3101.

773 So.2d 1232 (2000)

MARVIN AND KAY LICHTMAN FOUNDATION, Appellant, v. In re ESTATE OF Marvin LICHTMAN, Appellee.

District Court of Appeal of Florida, Third District.
December 13, 2000.
Ruden, McClosky, Smith Schuster & Russell and James R. George, Miami, for appellee.
Before GODERICH and SORONDO, JJ., and NESBITT, Senior Judge.

NESBITT, Senior Judge.

The Marvin and Kay Lichtman Foundation (herein, the Foundation), beneficiary of the Marvin Lichtman Living Trust (herein, the Trust), appeals the awards made to the two personal representatives of the estate of Marvin Lichtman, the awards made to the same two persons acting as trustees for the Trust, and the award made to the attorney who acted as counsel for the trustees. We affirm in part, reverse in part, and remand for further proceedings.

Marvin Lichtman and Kay Lichtman were murdered on January 23, 1996, and their Illinois home was burned to the ground. The couple's murder was the subject of an extensive criminal investigation and national media coverage. Pursuant to the provisions of Mr. Lichtman's Will and his Trust, June Hood and Edward Hammatt were appointed trustees of the Trust and co-personal representatives of Mr. Lichtman's estate.1 Mr. Lichtman's estate was to be distributed to the Trust. The Trust provided that after payment of $600,000 in specific gifts, the remaining assets passed to the Foundation, which Mr. Lichtman and his wife had established.2

According to the personal representatives, because of the circumstances of Mr. Lichtman's death, they were immediately confronted with numerous issues including the recovery of insurance proceeds, and cooperating in the murder investigation. The fiduciaries and their counsel also contended with national media coverage. Loss of financial records in the fire required Hood, Hammatt and their counsel, Sol Stiss, to reconstruct the affairs of Mr. Lichtman. Testimony was presented to the trial court on the issues facing the trustees/co-personal representatives and their resolution of these issues.3 The fiduciaries were able to locate and marshal assets through review of brokerage statements, credit card statements, tax returns, computer materials, home videos, insurance policies, and checkbooks and obtained from Mr. Lichtman's casualty insurer $1,409,000.00 for the destroyed home4 and $1,409,000.00 in insurance proceeds for the contents of the home.5 The personal representatives completed their duties and served a Petition for Discharge and final accounting.6

Simultaneously, Hood and Hammatt, in their capacities as trustees, served their interim accounting. It was thereafter that the Foundation served its Beneficiary's Objection to Petition for Discharge and Final Accounting and Objection to compensation. These objections addressed the accountings of the personal representatives as well as interim accounting of the trustees. The objections to both accountings were heard by the trial judge.

The fees of the personal representatives and their attorney, Stiss, were calculated pursuant to sections 733.617 and 733.6171 Florida Statutes (1999). Hood and Hammatt were awarded $82,407.85 each for their services as personal representatives. The Foundation contended that this award is improper and argued that section 733.617(5)7 violates the equal protection and due process clauses of the Florida and United States Constitutions, as permitting double compensation for the same work. The trial court also awarded Hood and Hammatt, $50,000.00 each, as trustees. The Foundation challenged this award on the ground that there was no evidentiary basis to support the award. The Foundation did not appeal the award of $177,708.10 for attorney Stiss' services as counsel to the personal representatives, however the Foundation did argue that based on the lack of evidentiary support, Stiss should not have been awarded $55,000.00 for his services as counsel for the trustees.

We find no merit to the Foundation's claim that an award of a full fee to each personal representative violated the beneficiary's right to due process or equal protection. The legislature has the authority to create classifications based upon financial resources for the amount involved in a transaction. See Reserve Insurance Co. v. Gulf Florida Terminal Co., 386 So.2d 550 (Fla.1980). The Foundation was afforded notice and opportunity to be heard as provided by the statute. See § 733.617(7)Fla. Stat. (1999)8.

We do agree however that while it is clear work was done by the trustees, there was no separate evidentiary basis for the trial court's award of $50,000 fees to the two trustees. No testimony or documentary evidence supported the figure arrived at by the court. Likewise, without evidentiary basis was the award of $55,000 to Stiss, as attorney for trustees. While the breadth as well as intricacies of the matters handled by these parties support awarding payments for the services they rendered, without evidence as to actual work performed or the amount of time spent, we cannot review such determinations. See Jones v. Dunning, 661 So.2d 941 (Fla. 5th DCA 1995)(remand was required for new order citing record support for awards); Moyle v. Moschell & Moschell, 582 So.2d 111 (Fla. 3d DCA 1991).

Accordingly, we affirm the fees awarded the personal representatives and vacate the awards to the trustees, as well as the attorney acting for the trustees. We remand for reconstruction of the record to afford a sufficient breakdown and allocation and apportionment of the work done in relation to the dual functions performed, so that we, as the reviewing body, can ascertain if there has been an error. See Dhondy v. Schimpeler, 528 So.2d 484 (Fla. 3d DCA 1988)(ordering remand where fee could not be properly assessed based wholly on a conclusory affidavit).

Affirmed in part, reversed in part, and remanded.

FootNotes


1. Mrs. Lichtman's personal representative was her niece, Barbara Higgason. Mrs. Lichtman's will left all of her jewelry, clothing, and furs to Higgason to distribute among Higgason's sisters in accordance with Mrs. Lichtman's instructions. Mrs. Lichtman's will devised the remainder of her estate to the Trust. The destruction of the jewelry, furs, and clothing in the fire created a dispute between the estate and the Trust.
2. At the time of the trial, approximately $7,000,000 had been distributed to the Foundation and $600,000 to friends and relatives.
3. Hood, Hammatt and Stiss also contended with Mrs. Lichtman's dissatisfied nieces. The Higgason nieces engaged in a series of actions designed to increase the value of their bequest, including their efforts to prevent the admission of Mr. Lichtman's will to probate. The nieces also filed a claim against the estate for $600,000.00 for the destroyed personal property. The nieces then filed proceedings against the fiduciaries contesting the validity of a codicil to Mr. Lichtman's will and the validity of an amendment to his Trust.
4. The fiduciaries also recovered $60,000.00 for the loss of the rental value of the destroyed home and $36,000.00 for destroyed landscaping.
5. Hood and Hammatt also pursued and litigated a claim for refund of Illinois state income taxes, penalties, and interest. The total amount of the claim for refund exceeded $221,000.00, including penalties and interest. The claim for refund was ultimately denied.
6. The final accounting reflected that $3,048,000.00 had been marshaled by the personal representatives.
7. Subsection 733.617(5) provides:
8. Subsection 733.617(7) provides:

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