In re Guardianship of Sapp

Citation868 So.2d 687
Decision Date02 April 2004
Docket Number No. 2D02-4010, No. 2D03-1404.
PartiesIn re GUARDIANSHIP OF Sara H. SAPP. Lee O'Hare and Lynn Atherton, Appellants, v. Lalai Hamric, Appellee.
CourtCourt of Appeal of Florida (US)

Cathy S. Reiman of Roetzel & Andress, Naples, for Appellants.

Melville G. Brinson, III, of Smoot Adams Edwards Doragh & Brinson, P.A., Fort Myers, for Appellee.


In these consolidated appeals, Lee O'Hare and Lynn Atherton challenge an order awarding compensation to their sister, Lalai Hamric, the guardian of the person of their mother, Sara H. Sapp (the Ward), and an order awarding attorney's fees and costs to Hamric's attorney, Melville G. Brinson, III. Because we conclude that the award of attorney's fees and costs to Brinson was barred by the express terms of the parties' settlement agreement, we reverse the order authorizing the payment of attorney's fees and costs from the Ward's estate to Brinson. We also reverse the order awarding compensation to Hamric and remand for further proceedings because Hamric's records were insufficient to support the award and because the order in part impermissibly compensated Hamric for services outside the scope of her duties as guardian of the person of the Ward.

Facts and Procedural History

These proceedings began in November 2001 with the filing by O'Hare and Atherton of petitions to determine incapacity and for the appointment of a plenary guardian of the person and property of the Ward. At the time of the filing of the petitions, the Ward was eighty-five years of age. She resided at Health Park Care Center in Fort Myers, Florida. The Ward was widowed and had four children: Lee O'Hare of Fairbanks, Alaska; Lynn Atherton of Tierra Verde, Florida; James M. Sapp of Fort Myers, Florida; and Lalai Hamric, who also resided in Fort Myers. O'Hare and Atherton requested the appointment of a professional guardian, Harold A. Foy.

Hamric filed a response to the petition admitting that the Ward was totally incapacitated. Hamric also contended in her response that she should be appointed as guardian of the Ward. In support of her position, Hamric noted that she was already handling the medical needs and financial affairs of the Ward pursuant to a durable power of attorney executed by the Ward in 1996. In addition, Hamric pointed out that she was also acting as the trustee of the Ward's existing trust and the trust established by the Ward's deceased husband, James A. Sapp. Hamric alleged that the Ward's only assets not held in trust were the contents of her condominium and her clothing. James M. Sapp also filed a response to O'Hare and Atherton's petition, admitting that the Ward was totally incapacitated and requesting the appointment of Hamric as guardian.

The parties engaged in extensive discovery proceedings. The matter was ultimately tried before a general master. On January 10, 2002, the second day of trial, the parties reached a settlement agreement that was dictated into the record of the proceedings. The parties' settlement agreement provided, in pertinent part, as follows:

(1) With certain provisions not relevant here, Hamric would be appointed as guardian of the person of the Ward.
(2) Northern Trust Bank or another mutually acceptable corporate or professional guardian would be appointed as guardian of the property of the Ward.
(3) The guardian of the property would send copies of the annual accountings and periodic investment account statements to each of the Ward's four children.
(4) Hamric would continue to serve as trustee of both the Ward's trust and the James A. Sapp Trust, but she would enter into a custodial agreement with the guardian of the property whereby it would manage all of the Ward's assets and pay her bills.
(5) The Ward's trust would pay the sum of $25,000 to O'Hare and Atherton and $25,000 to Hamric toward their attorney's fees and costs incurred for the litigation. Any additional fees and costs for the litigation would be the responsibility of the party who incurred them.
(6) The parties and the guardian of the property would execute releases necessary to effect "a complete global settlement."
On February 6, 2002, the circuit court entered an order approving the settlement agreement.

With some modifications, the performance of the settlement agreement was ultimately completed. Hamric was appointed and qualified as guardian of the person of the Ward. Northern Trust Bank declined to serve as guardian of the property, and the parties agreed instead to the appointment of Harold A. Foy, who had originally been proposed for the position by O'Hare and Atherton. Northern Trust Bank did agree to serve as custodian of the Ward's assets pursuant to a contract with Hamric, who continued to serve as trustee of the Ward's trust. The final arrangements provided for the Bank to transfer money to Foy on a monthly basis upon court approval and on instructions from Hamric so that he could pay the Ward's expenses.

The Ward died on November 23, 2003, during the pendency of these appeals.

CASE NO. 2D02-4010
The Award of Fees and Costs to Brinson

The settlement agreement that the parties reached on January 10, 2002, as announced to the general master by attorney Brinson, provided, in pertinent part, as follows:

The Petitioners['] [O'Hare and Atherton's] fees and costs will be paid by the trust for this litigation up to $25,000, beyond that that's their responsibility. They agree the trust may pay Mrs. Hamric's fees and costs up to $25,000, beyond that it's her responsibility. The trust will pay the examining committee fees and Mr. Lakeman's fees. [Lakeman was the court-appointed attorney for the Ward.]
And I think also we agreed that the litigants plus the guardian will execute a wide variety of mutual releases so that this is a complete global settlement. I think what we are planning is that we would get a custodial agreement with the bank, which of course Ms. Reiman [counsel for O'Hare and Atherton] would review, and once we get everyone's approval on it, present that to you with a comprehensive order approving all this and whatnot and making the appointments.

Pursuant to the court-approved settlement agreement, Brinson was paid the sum of $25,000 from the Ward's funds toward Hamric's fees and costs for the litigation.

For a variety of reasons not pertinent to our decision, the implementation of the settlement reached on January 10, 2002, proved to be more difficult and time consuming than the parties had anticipated. On June 6, 2002, Brinson filed a petition that acknowledged receipt of $25,000 in attorney's fees and costs and requested an award of an additional $13,320.50 attorney's fees and $459.56 costs for the period from January 11, 2002, through May 24, 2002. In his petition, Brinson alleged that he had rendered the services and incurred expenses on behalf of Hamric in her capacity as guardian of the person of the Ward.

At a hearing on Brinson's petition, counsel for O'Hare and Atherton objected to an award of the fees and costs requested on the ground that the settlement agreement barred an additional award because "the fees that are being sought at this particular time are fees to consummate the settlement agreement and come within exactly what it was that we settled for." Brinson responded: "Our position and contention is that the settlement agreement provision for fees provided for fees for handling the litigation through settlement and that subsequent to the settlement began the process of handling the guardianship and putting everything that we had agreed to in place, and that it's not covered." Brinson also argued that he was entitled to the requested fees and costs because his services were rendered on behalf of Hamric in her capacity as guardian of the person of the Ward and were beneficial to the Ward.

The circuit court entered an order that awarded Brinson all of the fees and costs he requested. On appeal, O'Hare and Atherton present three arguments. Because we agree that the settlement agreement barred the award of additional fees and costs to Brinson, we need not address O'Hare and Atherton's two other arguments.

The Standard of Review

Settlement agreements are governed by contract law. Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985); Schlosser v. Perez, 832 So.2d 179, 182 (Fla. 2d DCA 2002). Therefore, we apply a de novo standard of review. See Vollmer v. Key Fin. Corp., 810 So.2d 966, 968 (Fla. 2d DCA 2002)

; Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001). "It is wellsettled that when entitlement to attorney's fees is based on the interpretation of contractual provisions as a pure matter of law, an appellate court will undertake a de novo review to determine the appropriate construction of the contract." Stevens v. Zakrzewski, 826 So.2d 520, 521 (Fla. 4th DCA 2002) (citing Gibbs Constr. Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000)).


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 on behalf of the ward. § 744.108(1), Fla. Stat. (2002); Cilley v. First Nat'l Bank of Mount Dora, 396 So.2d 808, 809 (Fla. 5th DCA 1981). In this case, however, the parties agreed to limit the attorney's fees and costs payable from the assets of the Ward "for this litigation" to the sum of $25,000 per side (the limiting agreement). Counsel were not precluded from charging more than $25,000, but any fees and costs exceeding that amount were to be payable by the party who incurred the fees, not from the Ward's funds.

Brinson argued that the limiting agreement applied only to fees and costs incurred through January 10, 2002—the date the settlement agreement was reached. According to Hamric and Brinson, the limiting agreement did not apply to fees and costs incurred subsequent to January 10, 2002, for services to perform and conclude the settlement agreement. This...

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