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In re Guardianship of Bloom

Florida Court of Appeals, Second District

May 24, 2017

In re Guardianship of Leon Bloom, an incapacitated person.
DOROTHY B. BLOOM, individually, and ROBERT M. ELLIOT, as Trustee of the Leon Bloom Revocable Living Trust u/a/d, as Restated on Appellees. MARSHALL BLOOM, individually, Appellant,


         Appeal from the Circuit Court for Sarasota County; Charles E. Williams, Judge.

          James L. Essenson, Barbara J. Welch, and Matthew J. Kelly of Law Firm of James L. Essenson, Sarasota, for Appellant.

          Allan F. Baily of Law Offices of Baily & Baily, P.A., Sarasota, for Appellee Dorothy B. Bloom.

          No appearance for Appellee Robert M. Elliott, as Trustee of the Leon Bloom Revocable Living Trust u/a/d 11/18/1988, as Restated on 10/22/2009.

          LUCAS, Judge.

         Marshall Bloom, a beneficiary and former personal representative of the late Leon Bloom's estate, challenges the circuit court's order denying his motion to recover his attorney's fees. The circuit court correctly construed the limits of our mandate from an earlier appeal and rejected Marshall's[1] "common fund rule" argument for recovery of his fees but then erroneously concluded that his fee motion asserted no statutory basis for the court to consider. In fact, it did. Thus, while we can affirm most of the determinations the circuit court has thus far made, we must reverse the circuit court's order so that the court may rule on the remaining argument presented in the fee motion.


         In 1988, Leon executed a trust naming his wife, Dorothy Bloom, as a secondary beneficiary and Robert Johnson as the trust's trustee. When he began to sense that Leon's health and acuity may have been in decline, Mr. Johnson filed a guardianship proceeding in 2014, in which he sought to have Leon's nephew, Marshall, appointed as emergency temporary guardian of Leon's person and property. Both Leon and Mr. Johnson passed away in 2015 while Leon's guardianship proceeding was still pending. At the time of Leon's death, Dorothy had pending in the guardianship proceeding an unresolved claim for reimbursement from Leon's trust for funds she alleged she had used to care for her husband. From this claim, a flurry of litigation ensued between Leon's family members and their attorneys, mostly revolving around who could represent what and whom.[2]

         After Mr. Johnson's death, Marshall, as the personal representative of Leon's estate, moved to be substituted in the guardianship proceeding as the petitioner in order to challenge Dorothy's claim. The circuit court granted Marshall's motion for substitution on October 23, 2015. Marc J. Soss, Esq., the successor trustee of Leon's trust, then filed a petition for writ of certiorari with this court on November 11, 2015, seeking to quash the order granting the substitution of Marshall as the petitioner. On March 23, 2016, in case number 2D15-4864, this court issued a per curiam order dismissing Mr. Soss's certiorari petition. In re Guardianship of Bloom, 189 So.3d 769 (Fla. 2d DCA 2016) (table decision). In addition to dismissing the petition, our court also granted Marshall's motion for appellate attorney's fees in case number 2D15-4864. While granting entitlement, our order remanded the matters of the amount and appropriate source of those fees for the circuit court's ultimate determination.

         Shortly before Mr. Soss began pursuing this unsuccessful certiorari petition, Marshall, through his attorney, James L. Essenson, Esq., filed a motion in the circuit court to disqualify Mr. Soss as trustee and appoint an independent trustee over Leon's trust.[3] The circuit court agreed with Marshall and granted the motion to disqualify Mr. Soss as trustee on April 7, 2016. Attorney Robert Elliott was then appointed in Mr. Soss's stead as the trustee of Leon's trust.

         Thus, in these early rounds of litigation, Marshall had two preliminary successes: the first, this court's order dismissing the certiorari petition challenging his substitution in Leon's guardianship proceeding; the second, the circuit court's order disqualifying the trustee of Leon's trust. Marshall then sought an award of his attorney's fees for the latter victory by filing a motion and a memorandum of law in the circuit court in which he posited three bases for recovery. First, Marshall argued that this court's prior fee award in the dismissed certiorari petition somehow constituted a finding that Mr. Essenson's services had benefitted Leon's estate, which, somehow, encompassed his efforts to disqualify Mr. Soss as trustee. As Marshall put it in his memorandum before the circuit court, since this court granted his entitlement to fees in the certiorari proceeding, a proceeding which enabled Mr. Essenson to maintain an objection to Mr. Soss's service as trustee, then "a fortiori, the Essenson firm is entitled to fees and costs for prosecuting" the disqualification motion, "which [was] clearly a benefit to the trust." According to Mr. Essenson, our prior determination of entitlement to appellate fees in the certiorari proceeding became "the law of the case, " so that all of Mr. Essenson's work going forward must be deemed a benefit to Leon's trust. Second, Mr. Essenson posited that he should be awarded his fees under the "common fund" theory of recovery, a common law claim for attorney's fees found in equitable jurisprudence. As his third basis, Mr. Essenson argued that he was entitled to attorney's fees under section 736.1005(1), Florida Statutes (2015), which provides that "[a]ny attorney who has rendered services to a trust may be awarded reasonable compensation from the trust."

          On June 8, 2016, the circuit court denied Marshall's motion for fees associated with disqualifying Mr. Soss. In its order denying the motion, the circuit court dispensed with Mr. Essenson's first argument out of hand: "the Essenson Firm's argument [is] unavailing, as the Essenson Firm reads the Second District's mandate much broader than the narrow issue on appeal." In apparent reference to Marshall's common fund argument, the circuit court "decline[d] to award attorney's fees as a ...

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