Bloom v. Bloom (In re Bloom)

• Decision Date: 24 May 2017
• Docket Number: Case No. 2D16-2985.
• Citation: 227 So.3d 165
• Parties: IN RE GUARDIANSHIP OF Leon BLOOM, an incapacitated person. Marshall Bloom, individually, Appellant, v. Dorothy B. Bloom, individually, and Robert M. Elliot, as Trustee of the Leon Bloom Revocable Living Trust u/a/d 11/18/1988, as Restated on 10/22/2009. Appellees.
• Court: Florida District Court of Appeals

227 So.3d 165

IN RE GUARDIANSHIP OF Leon BLOOM, an incapacitated person.Marshall Bloom, individually, Appellant,

v.Dorothy B. Bloom, individually, and Robert M. Elliot, as Trustee of the Leon Bloom Revocable Living Trust u/a/d 11/18/1988, as Restated on 10/22/2009. Appellees.

Case No. 2D16-2985.

District Court of Appeal of Florida, Second District.

Opinion filed May 24, 2017

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

Allan F. Baily of Law Offices of Baily & Baily, P.A., Sarasota, for Appellee Dorothy B. Bloom.

No 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.

LUCAS, Judge.

Marshall 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's¹ "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 motion.

I.

In 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.²

After 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 determination.

Shortly 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.³ 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.

Thus, 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 trust."

On 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 matter of equity." Finally, the court determined that there was no statutory basis for Mr. Essenson to recover his fees.

Marshall now appeals this order.

II.

Our jurisdiction to review the probate order before us is a preliminary point we must address. On January 1, 2012, Florida Rule of Appellate Procedure 9.170 took effect. Subsection (b) of the rule begins:

Except for proceedings under rule 9.100 and rule 9.130(a), appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.

The subsection continues by listing those orders that finally determine a right or obligation, which "include, but are not limited to," twenty-four separately described categories. Amongst the twenty-four categories of final, appealable orders listed in the rule, we find (b)(23), orders that "award attorneys' fees or costs." Here, however, the circuit court's order denied Marshall's motion for attorney's fees and so is, quite obviously, not one that could be fairly read to "award" anyone's fees or costs. See, e.g., Award , Black's Law Dictionary (10th ed. 2014) (defining the verb "award" as "[t]o grant by formal process or by judicial decree"). Other provisions within subsection (b) provide for review of orders that, for example, "determine a motion," or "grant or deny" a petition, making the selection of the word "award" in (b)(23) all the more conspicuous by its contrast.

Nevertheless, we are satisfied that an order denying attorney's fees or costs for an interested person remains an appealable order following the passage of rule 9.170. Rule 9.170 generally describes appealable probate and guardianship orders as those "that finally determine a right or obligation of an interested person" under the probate code. This language mirrors the defining language that was in the rule's predecessor, rule 9.110(a)(2), which itself was merely a restatement of former Florida Rule of Probate Procedure 5.100—a deliberate repetition, according to the Florida Appellate Court Rules Committee's 1996 amendment note, because rule 9.110(a)(2) was "not intended to change the definition of final order for appellate purposes." Fla. R. App. P. 9.110 committee notes (1996 amend.). Thus, the traditional rule that a probate order is sufficiently final for appellate review when "judicial labor" has ended as to the issue the order addresses appears to remain intact following rule 9.170's passage, just as it had when rule 9.110 was enacted. See Dempsey v. Dempsey, 899 So.2d 1272, 1273 (Fla. 2d DCA 2005) (" Rule 9.110(a)(2) ‘does not abrogate prior case law holding that a party's right of appeal arises when there is a termination of judicial labor on the issue involved as to that party.’ " (quoting In re Estate of Walters, 700 So.2d 434, 435 n.1 (Fla. 4th DCA 1997) )); see also Armstrong v. Exceptional Child Ctr., Inc., ––– U.S. ––––, 135 S.Ct. 1378, 1386, 191 L.Ed.2d 471 (2015) ( "[W]hen ‘judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute’ is presumed to incorporate that interpretation." (quoting Bragdon v. Abbott, 524 U.S. 624, 645, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) )); State v. Losada, 175 So.3d 911, 914 (Fla. 4th DCA 2015) (applying the prior-construction canon of interpretation). While the inclusion of a list of appealable probate and guardianship orders was a novel development when rule 9.170 was enacted, it must be remembered that the list's prefatory text, "include, but are not limited to," signals a nonexclusive listing. See Pro–Art Dental Lab, Inc. v. V–Strategic Grp., LLC, 986 So.2d 1244, 1257 (Fla. 2008) ("[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle ." (alteration in original) (quoting Fed. Land Bank of St. Paul...