Third District Court of Appeal
State of Florida
Opinion filed February 21, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2314
Lower Tribunal Nos. 15-362, 14-6726
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Michael J. Schlesinger, etc., et al.,
Appellants,
vs.
Anita Jacob,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, 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.
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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 the services properly;
(c) The likelihood that the acceptance of the particular employment
will preclude other employment of the person;
(d) The fee customarily charged in the locality for similar services;
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(e) The nature and value of the incapacitated person's property, the
amount of income earned by the estate, and the responsibilities and
potential liabilities assumed by the person;
(f) The results obtained;
(g) The time limits imposed by the circumstances;
(h) The nature and length of the relationship with the incapacitated
person; and
(i) The experience, reputation, diligence, and ability of the person
performing the service.
Determining the amount of reasonable attorney’s fees to be awarded lies
within the discretion of the trial court, and such determination will not be disturbed
unless there is a lack of competent substantial evidence to support the award.
Gamse v. Touby, 382 So. 2d 115 (Fla. 3d DCA 1980). In exercising that
discretion, the trial may well consider, for example, the extent to which the party
engaged in unproductive litigation over who would be appointed guardian or
where the party pursued other goals that did not benefit the ward or his estate.
Thorpe, 67 So. 3d at 346.
We reverse the trial court’s order denying appellants’ motion for entitlement
to attorney’s fees and costs and remand for further proceedings consistent with this
opinion.
ROTHENBERG, C.J., concurs.
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LUCK, J., concurring specially:
I concur in the majority opinion because our court in Losh v. McKinley, 106
So. 3d 1014 (Fla. 3d DCA 2013) joined the other district courts in welding onto the
guardianship attorney’s fee statute, section 744.108(1), the requirement that an
attorney’s services “benefit” the ward for the attorney to be entitled to fees. We
are bound to follow Losh until the en banc court or the Florida Supreme Court
overrules it, even though the word “benefit” is found nowhere in section
744.108(1) (“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.”). See In re
Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, Fla R.
App. P., 416 So. 2d 1127, 1128 (Fla. 1982) (“[T]he suggestion that each three-
judge panel may rule indiscriminately without regard to previous decisions of the
same court is totally inconsistent with the philosophy of a strong district court of
appeal which possesses the responsibility to set the law within its district.”).
Courts adding words to a statute is bad for all the usual reasons. It takes us
out of our lane as judges and usurps the power of the legislature to make the laws.
See Art. III, § 1, Fla. Const. (“The legislative power of the state shall be vested in a
legislature of the State of Florida, consisting of a senate composed of one senator
elected from each senatorial district and a house of representatives composed of
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one member elected from each representative district.”); id. Art. II, § 3 (“The
powers of the state government shall be divided into legislative, executive and
judicial branches. No person belonging to one branch shall exercise any powers
appertaining to either of the other branches unless expressly provided herein.”). It
substitutes our will for the will of the people as reflected in the laws enacted by
their elected representatives. See Farmers Mut. Fire Ins. Co. of Salem v. N.J.
Prop.-Liab. Ins. Guar. Ass’n, 74 A.3d 860, 873 (N.J. 2013) (“Legislation reflects
the will of the people as enacted through their elected representatives.”). It upsets
the delicate compromises and give-and-take that go into the legislative process.
See Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017)
(Gorsuch, J.) (“Legislation is, after all, the art of compromise, the limitations
expressed in statutory terms often the price of passage . . . .”). There are others.
But there is a specific harm in adding the requirement that an attorney’s
services must benefit the ward or the ward’s estate. Wards are vulnerable.
Whether by age or incapacity, a guardian has to be appointed to make decisions on
a ward’s behalf. Too often in our community, wards are taken advantage of by con
artists, and even unscrupulous family members, financial institutions,
professionals, and health care providers. By authorizing attorney’s fees for
services rendered to the ward, the legislature sought to encourage concerned family
members and other interested parties to investigate abuses of a ward and to bring
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good-faith claims to the probate court. Those claims may not be successful in the
end; it may turn out that the ward is not being taken advantage of or abused; but
family members and other interested parties are rendering services to the ward by
making sure they are well cared for and that the guardian is doing his or her job.
By authorizing attorney’s fees for services rendered to the ward, the legislature has
essentially asked family members and interested parties, the ones best suited to
watch over the ward, to be vigilant in protecting the ward’s rights and bring to the
trial court’s attention good-faith concerns that the ward is being abused. As the
legislature explained,
it is the purpose of [the guardianship act] to promote the public
welfare by establishing a system that permits incapacitated persons to
participate as fully as possible in all decisions affecting them; that
assists such persons in meeting the essential requirements for their
physical health and safety, in protecting their rights, in managing their
financial resources, and in developing or regaining their abilities to
the maximum extent possible; and that accomplishes these objectives
through providing, in each case, the form of assistance that least
interferes with the legal capacity of a person to act in her or his own
behalf.
§ 744.1012(3), Fla. Stat.
Consider this case. Even if the ward’s daughter had been unsuccessful in
her petitions, they triggered the trial court to appoint three doctors who were
required to meet with the ward and his family physician and caretaker, diagnose
him, and evaluate his capacity to manage his financial affairs and make medical
decisions. Id. § 744.331(3)(g)1.-6. By filing and litigating the petitions, the
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attorney rendered services to the ward by making sure he was being properly cared
for and was of sound mind to exercise his rights.
Adding the requirement that an attorney’s services must benefit the ward, as
our district courts have done, has consequences that were not intended by the
legislature. Under Losh and the other cases cited by the majority opinion, if the
attorney services rendered to the ward are not successful, then the attorney is not
entitled to fees. The result is that attorneys are less likely to represent family
members and interested parties concerned about how the ward is treated because
they will not get paid, and thus, fewer claims by family members and interested
parties will be brought to court. The result is less oversight of the most vulnerable
members of our community. Adding the benefit requirement to section 744.108(1)
discourages attorneys from bringing guardianship claims that would otherwise be
brought.
The legislature knows how to write attorney’s fee statutes that require the
lawsuit to end successfully. See, e.g., § 713.29, Fla. Stat. (“In any action brought
to enforce a lien or to enforce a claim against a bond under this part, the prevailing
party is entitled to recover a reasonable fee for the services of her or his attorney
for trial and appeal or for arbitration, in an amount to be determined by the court,
which fee must be taxed as part of the prevailing party’s costs, as allowed in
equitable actions.”); id. § 501.2105(1) (“In any civil litigation resulting from [a
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deceptive and unfair trade practice] involving a violation of this part . . . the
prevailing party, after judgment in the trial court and exhaustion of all appeals, if
any, may receive his or her reasonable attorney’s fees and costs from the
nonprevailing party.”); id. § 448.08 (“The court may award to the prevailing party
in an action for unpaid wages costs of the action and a reasonable attorney’s fee.”).
But section 744.108(1) was not written as a prevailing party attorney’s fee statute.
King v. Ferguson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., 862 So. 2d
873, 874 (Fla. 2d DCA 2003) (Villanti, J., concurring specially) (“Nothing in either
section 744.108(1) or 744.108(2) entitles a party to an award of attorney’s fees
from the ward’s estate simply because that party’s position prevailed in the trial
court.”). It provides for attorney’s fees where services were rendered to the ward.
Losh and the other cases cited by the majority opinion are contrary to the
legislature’s decision to expand the scope of those entitled to attorney’s fees to
those who render services to the ward, and not just to successful parties, as it has
done in countless other statutes.
The structure of section 744.108 also shows the legislature’s intent that the
benefit resulting from the litigation is not to be considered when determining
whether the attorney is entitled to fees. Subsection (1) is the entitlement section,
and says that an attorney who renders service to the ward is entitled to a reasonable
fee for services rendered. § 774.108(1), Fla. Stat. Once the trial court determines
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that an attorney is entitled to fees under subsection (1), subsection (2) provides the
criteria for the court to consider in determining the amount of the fee award.
Unlike subsection (1), subsection (2) requires the trial court to consider the
“novelty,” “difficulty,” and “skill required” in rendering services to the ward; the
“result obtained”; the “diligence” and “ability” of the attorney rendering services;
and the ward’s property. Id. § 744.108(2). These factors, unlike in subsection (1),
go to the benefit received by the ward from the attorney’s services. The trial court
is authorized to reduce the fee award to account for the fact that little-to-no benefit
resulted from the services rendered.
More importantly, what the structure of section 744.108 tells us is that the
legislature knew how to account for the benefit to the ward, and did so in
subsection (2) when considering the amount of the fees. The legislature
deliberately left the benefit factors out of subsection (1). Losh and the other cases
flip the analysis and consider the benefit factors at the entitlement stage.
By reading section 744.108(1) to require a benefit to the ward, we make it
harder for family members and interested parties to bring claims on behalf of their
loved ones, undercompensate attorneys who render services to a ward (although
don’t ultimately prevail in the case), and double count certain factors in the
entitlement decision and then again when considering the amount to award. This is
not what the legislature wrote and it is not what it intended.
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In this case, adding a benefit requirement to section 744.108(1) does not
affect the result because, as the majority opinion notes, the daughter’s petitions
were successful. The attorney prevailed. But in the appropriate case, where the
added language does make a difference in whether the attorney is entitled to fees, I
think we should recede from Losh and read section 744.108 as the legislature
wrote it.
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