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Schlesinger v. Jacob

Florida Court of Appeals, Third District

February 21, 2018

Michael J. Schlesinger, etc., et al., Appellants,
v.
Anita Jacob, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal Nos. 15-362, 14-6726, Bernard S. Shapiro, Judge.

          Schlesinger & Associates, P.A., and Michael J. Schlesinger and Andrew S. Genden; Luis E. Barreto & Associates, P.A., and Luis E. Barreto, for appellants.

          Rosenthal, Rosenthal, Rasco, LLC, and Steve M. Bimston and Eduardo I. Rasco, for appellee.

          Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.

          EMAS, J.

         Appellants Michael J. Schlesinger, of Schlesinger & Associates, P.A., and Luis E. Barreto, of Luis E. Barreto & Associates, P.A., appeal the trial court's order denying their motion for entitlement to attorney's fees and costs in an underlying guardianship proceeding. We reverse the trial court's order, which denied entitlement to attorney's fees under section 744.108(1), Florida Statutes (2016). That subsection provides:

A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward's behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.

         Case law construing this provision uniformly holds that "an attorney's entitlement to payment of reasonable fees and costs is subject to the limitation that his or her services must benefit the ward or the ward's estate." In re G'ship of Ansely, 94 So.3d 711, 713 (Fla. 2d DCA 2012); Thorpe v. Myers, 67 So.3d 338 (Fla. 2d DCA 2011); Butler v. G'ship of Peacock, 898 So.2d 1139 (Fla. 5th DCA 2005); Price v. Austin, 43 So.3d 789 (Fla. 1st DCA 2010). See also Zepeda v. Klein, 698 So.2d 329 (Fla. 4th DCA 1997). This court has adopted our sister courts' construction of section 744.108(1). See Losh v. McKinley, 106 So.3d 1014, 1015 (Fla. 3d DCA 2013).

         In denying the motion for attorney's fees, the trial court concluded that none of the services rendered by appellants benefitted the Ward. However, this conclusion is unsupported by competent substantial evidence in the record. Indeed, appellants provided services which included: a petition to determine incapacity, which the trial court granted upon a determination, supported by clear and convincing evidence, that the Ward was totally incapacitated; and a petition to establish a plenary guardianship, which the trial court also granted, upon a determination that such was necessary "to provide for the welfare and safety of the Ward, " and because there was no less restrictive alternative to plenary guardianship that would "sufficiently address the problems and needs of the Ward." As a result, the Ward received the full benefit and protection of a plenary guardianship of person and property under Florida law.

         The trial court's order appears to have conflated the separate determinations of entitlement to attorney's fees with the reasonable amount of fees to be awarded. The court's determination of amount and reasonableness is guided by section 744.108(2), Fla. Stat. (2016) which provides:

When fees for a guardian or an attorney are submitted to the court for determination, the court shall consider the following criteria:
(a) The time and labor required;
(b) The novelty and difficulty of the questions involved and the skill required to perform ...

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