Schlesinger v. Jacob
Decision Date | 21 February 2018 |
Docket Number | No. 3D16–2314,3D16–2314 |
Citation | 240 So.3d 75 |
Parties | Michael J. SCHLESINGER, etc., et al., Appellants, v. Anita JACOB, Appellee. |
Court | Florida District Court of Appeals |
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.
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 Ansley, 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. 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:
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.
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) (). 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) ().
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. (); id. Art. II, § 3 () . 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, 215 N.J. 522, 74 A.3d 860, 873 (2013) (). It upsets the delicate compromises and give-and-take that go into the legislative process. See Henson v. Santander Consumer USA Inc., ––– U.S. ––––, 137 S.Ct. 1718, 1725, 198 L.Ed.2d 177 (2017) (Gorsuch, J.) (). There are others.
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