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In re Guardianship of Bloom

Florida Court of Appeals, Second District

July 27, 2018

In re Guardianship of Leon Bloom, an incapacitated person.
v.
DOROTHY B. BLOOM; MARSHALL BLOOM; and ROBERT M. ELLIOTT, as Trustee of the Leon Bloom Revocable Living Trust u/a/d 11/18/1988, as Restated on 10/22/2009, Respondents. JAMES L. ESSENSON, Petitioner,

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Petition for Writ of Certiorari to the Circuit Court for Sarasota County; Charles E. Williams, Judge.

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

          Allan F. Baily of the Law Offices of Baily & Baily P.A., Sarasota; and Marc J. Soss, Lakewood Ranch, for Respondent Dorothy B. Bloom.

          No appearance for remaining Respondents.

          ROTHSTEIN-YOUAKIM, JUDGE.

         In this certiorari proceeding, Attorney James L. Essenson seeks review of a trial court order granting Dorothy B. Bloom's (Dorothy) motion to compel production of Essenson's billing records in connection with his representation of Marshall Bloom (Marshall) in the underlying proceeding relating to the guardianship, estate, and trust of Leon Bloom (Leon).[1] This court stayed this certiorari proceeding pending the outcome of a related appeal, and Essenson has filed a notice of voluntary dismissal because his petition has become moot in light of subsequent proceedings on remand from that appeal. Before this court stayed the proceeding, however, Dorothy had filed a "motion for attorney's fees and costs on appeal." Consequently, along with his notice of voluntary dismissal, Essenson has also filed a "motion to preclude costs on appeal."

         We accept Essenson's notice of voluntary dismissal, dismiss Essenson's petition, and deny Dorothy's motion for appellate attorney's fees without further comment, but we explain why, pursuant to Florida Rule of Appellate Procedure 9.400(a), we strike Dorothy's motion for appellate costs and grant Essenson's motion to preclude the trial court from taxing appellate costs in favor of Dorothy.

         Background

         This court's opinion in In re Guardianship of Bloom, 227 So.3d 165 (Fla. 2d DCA 2017), details the procedural history of Marshall's and Dorothy's involvement in Leon's guardianship and trust proceedings and, following Leon's death, his probate proceedings. During the pendency of Dorothy's claim for reimbursement from Leon's trust for funds she allegedly had used to care for Leon, Marshall successfully removed the successor trustee of Leon's trust. Based on the successful removal, Marshall sought an award of attorney's fees and asserted three bases for relief. The trial court denied the fee motion but in doing so only addressed two of Marshall's three bases for relief. Marshall's appeal of the order denying fees was the subject of Bloom, 227 So.3d 165.

         While that appeal was pending, Dorothy moved to compel Essenson to produce billing records that she claimed were relevant to Marshall's previously denied request for attorney's fees. Essenson objected, arguing, in part, that his billing records were not relevant because the court had denied Marshall's fee motion. He acknowledged, however, that they would become relevant if Marshall's appeal were successful and if the trial court were to determine on remand that he was entitled to fees. Essenson represented that were that to happen, then he would produce the requested billing records without objection. Nonetheless, the court granted Dorothy's motion to compel and ordered Essenson to produce his billing records, as redacted for attorney-client and work-product privileges. Essenson timely sought certiorari review.

         In his petition, Essenson contends that the trial court departed from the essential requirements of law by compelling production of billing records that were not relevant to anything in the proceeding in light of that court's determination that Marshall was not entitled to an award of attorney's fees. Essenson acknowledged, however, that if this court reversed the trial court's determination on entitlement and if the trial court ultimately determined that Marshall was entitled to fees, this certiorari proceeding would become moot, and he again represented that, in such a case, he would willingly produce the records that Dorothy had requested. Accordingly, this court stayed this certiorari proceeding pending the outcome of Marshall's appeal of the order denying entitlement to fees.

         Thereafter, in Bloom, 227 So.3d at 170, this court remanded for the trial court to consider Marshall's previously overlooked third basis for fees, and we continued the stay of this certiorari proceeding. On remand, the trial court determined that Marshall was entitled to attorney's fees.

         As promised, Essenson acknowledges that his billing records are now relevant, and he has filed a notice of voluntary dismissal of his certiorari petition as moot. But pursuant to rule 9.400(a), he also moves for this court to preclude the trial court from awarding ...


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