Michael J. Schlesinger, etc., et al., Appellants,
Anita Jacob, Appellee.
final until disposition of timely filed motion for rehearing.
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.
ROTHENBERG, C.J., and EMAS and LUCK, JJ.
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.
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
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.
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
When fees for a guardian or an attorney are submitted to the
court for determination, the court shall consider the
(a) The time and labor required;
(b) The novelty and difficulty of the questions involved and
the skill required to perform ...