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,
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Charles E.
L. Essenson, Barbara J. Welch, and Matthew J. Kelly of Law
Firm of James L. Essenson, Sarasota, for Appellant.
F. Baily of Law Offices of Baily & Baily, P.A., Sarasota,
for Appellee Dorothy B. Bloom.
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.
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 "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
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.
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
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. 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.
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
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 ...