Thorpe v. Myers

• Decision Date: 15 July 2011
• Docket Number: 2D10–3402.,Nos. 2D10–2977,s. 2D10–2977
• Parties: Jana THORPE, Appellant,v.M. Suzanne MYERS, as Guardian of the Property of Mary K. Zwayer, and Thomas Zwayer, as Guardian of the Person of Mary K. Zwayer, Appellees.Michael Love–Zwayer and Joan Duffee, Appellants,v.M. Suzanne Myers, as Guardian of the Property of Mary K. Zwayer, and Thomas Zwayer, as Guardian of the Person of Mary K. Zwayer, Appellees.
• Court: Florida District Court of Appeals

67 So.3d 338

Jana THORPE, Appellant,

v.M. Suzanne MYERS, as Guardian of the Property of Mary K. Zwayer, and Thomas Zwayer, as Guardian of the Person of Mary K. Zwayer, Appellees.Michael Love–Zwayer and Joan Duffee, Appellants,

v.M. Suzanne Myers, as Guardian of the Property of Mary K. Zwayer, and Thomas Zwayer, as Guardian of the Person of Mary K. Zwayer, Appellees.

Nos. 2D10–2977

2D10–3402.

District Court of Appeal of Florida, Second District.

July 15, 2011.

J. Steven Southwell, II, and Eduardo F. Morrell of Morrell, Watson & Southwell, P.A., Wauchula, for Appellant Jana Thorpe.James C. McClendon, II, of Weaver, McClendon & Penrod, LLP, Lake Wales for Appellants Michael Love–Zwayer and Joan Duffee.James V. Lobozzo, Jr., of McClure & Lobozzo, Sebring, for Appellees.WALLACE, Judge.

In Case No. 2D10–2977, Jana Thorpe, a professional guardian, appeals the circuit court's order denying her any compensation for her services as the emergency temporary guardian of Mary K. Zwayer (the Ward). In Case No. 2D10–3402, Michael Love–Zwayer and Joan Duffee, who successfully petitioned for the creation of a guardianship for the Ward, appeal the circuit court's order denying their attorneys any fees or reimbursement of costs. Because both Ms. Thorpe and the petitioners' attorneys are entitled to reasonable compensation under section 744.108, Florida Statutes (2009), the circuit court erred in failing to make appropriate awards to them. Accordingly, we reverse the circuit court's order in each case and remand for further proceedings.

I. THE FACTUAL AND PROCEDURAL BACKGROUND COMMON TO BOTH CASES

These consolidated cases involve two separate orders and different appellants. However, the appellees are the same in each case. The two cases also share a common core of facts. This court previously consolidated the cases on the appellees' motion.

On October 6, 2009, two of the Ward's children, Michael Love–Zwayer and Joan Duffee, filed a petition in the Highlands County Circuit Court to determine the incapacity of the Ward. In their petition, Michael and Joan alleged that the Ward, who was ninety-three years old, was suffering from dementia. Michael and Joan also filed a petition seeking the appointment of Ms. Thorpe as the plenary guardian of the person and property of the Ward. Ms. Thorpe was a professional guardian registered with the Statewide Public Guardianship Office.

The Ward had nine children living when the petitions were filed. In the months preceding the filing of the petitions, most of the Ward's nine children had substantial disagreements concerning access to the Ward and the handling of her finances. Such disagreements and concerns about these matters led Michael and Joan to file a separate petition seeking the appointment of Ms. Thorpe as the emergency temporary guardian of the Ward. In this petition, Michael and Joan alleged that some of the Ward's other children had (1) concealed the Ward's whereabouts; (2) moved the Ward from Ohio to Florida at a time when her health was at risk; (3) changed the Ward's accounts and assets into joint ownership; (4) sold some of the Ward's assets and used the proceeds to purchase things for themselves, including a boat; and (5) generally failed to account for, or to otherwise explain, their management of the Ward's affairs.

On October 7, 2009, the circuit court entered an order appointing Ms. Thorpe as the emergency temporary guardian of the Ward. This order was entered without notice to the Ward's other children. The order appointing Ms. Thorpe recited that it appeared to the circuit “court that there is an imminent danger that the physical or mental health or safety of the alleged incapacitated person will be seriously impaired or that the property of that person is in danger of being wasted, misappropriated or lost unless immediate action is taken.” Although Thomas Zwayer, one of the appellees, filed a motion to revoke Ms. Thorpe's appointment, the circuit court never revoked or vacated her appointment as emergency temporary guardian. Indeed, the circuit court later extended Ms. Thorpe's original ninety-day appointment until “April 5, 2010, or [until] such time as a plenary guardian is appointed ..., whichever occurs first.”

Meanwhile, the examining committee that was appointed as a result of the petition to determine incapacity found the Ward to be totally incapacitated. The examining committee recommended the appointment of a plenary guardian for the Ward. In a decision which disturbed some of the Ward's children, Ms. Thorpe removed the Ward from her home in Avon Park and placed her in an assisted living facility (the ALF). Jon Zwayer, one of the Ward's sons, had been living with the Ward in her Avon Park residence and acting as her caregiver.

As the guardianship proceedings progressed, the various siblings gravitated into factions, lawyers were hired, and litigation commenced. The issues in controversy revolved around the necessity for the appointment of a guardian and, if a guardianship was established, the best candidate for appointment as guardian. Thomas Zwayer initially opposed the creation of a guardianship, but he also filed a competing petition to be appointed as the plenary guardian of the person and property of the Ward.

To their credit, the Ward's children eventually realized that continued litigation over these matters was not in anyone's interest. The mounting costs of the litigation were also inconsistent with the conservation of the Ward's relatively modest estate. At a hearing held on January 22, 2010, the nine siblings stipulated to a settlement. In accordance with the settlement agreement, the Ward was declared to be totally incapacitated. Thomas was appointed plenary guardian of the Ward's person. One of the Ward's daughters, M. Suzanne Myers, was appointed plenary guardian of the Ward's property. The boat, motor, and trailer which had been bought with over $14,000 of the Ward's money and titled in the names of one of her sons and his wife were to be sold and the proceeds paid to the Ward's estate. And the Ward would leave the ALF and return home, spending one-half of the year at her home in Avon Park and the other one-half of the year in Ohio. Jon apparently resumed his role as the Ward's caregiver at the Avon Park residence.

Unfortunately, the settlement agreement did not address the issue of fees and costs for Ms. Thorpe or for the attorneys for the petitioners, Michael and Joan.¹ The omission to address the issue of payment of these fees and costs set the stage for the additional disputes that are the subject of these appeals.

We will discuss first the issue of Ms. Thorpe's fees for her services as emergency temporary guardian. Then we will consider Michael and Joan's petition for the payment of the fees and costs of their attorneys. But before discussing these matters, we will note the applicable standards of review.

II. THE APPLICABLE STANDARDS OF REVIEW

Generally speaking, appellate review of orders awarding guardian's fees and attorney's fees is for abuse of discretion. See Lutheran Servs. Fla., Inc. v. McCoskey (In re Guardianship of Shell), 978 So.2d 885, 889–90 (Fla. 2d DCA 2008) (guardian's fees); Butler v. Guardianship of Peacock, 898 So.2d 1139, 1141 (Fla. 5th DCA 2005) (attorney's fees); Gamse v. Touby, 382 So.2d 115, 116 (Fla. 3d DCA 1980) (guardian's fees and attorney's fees). However, in this case, the circuit court did not award any fees at all to Ms. Thorpe or to the attorneys for Michael and Joan. The circuit court's decision to deny them any fees was based both on its interpretation of section 744.108 and its findings that their services did not benefit the Ward.

We defer to the circuit court's findings of fact when they are based on competent, substantial evidence. State, Fla. Highway Patrol v. Forfeiture of Twenty Nine Thousand Nine Hundred & Eighty (29,980) in U.S. Currency, 802 So.2d 1171 1172 (Fla. 3d DCA 2001). However, we are not required “to disregard record evidence that disproves the lower court's findings or that reveals its ruling to be an abuse of discretion.” In re Doe, 932 So.2d 278, 284 (Fla. 2d DCA 2005). To the extent that the circuit court based its rulings on its interpretation of the pertinent statute, we employ a de novo standard of review. See Ware v. Land Title Co. of Fla., Inc. 582 So.2d 46, 46–47 (Fla. 2d DCA 1991) (applying de novo review).

III. MS. THORPE'S GUARDIAN'S FEES, CASE NO. 2D10–2977

A. Ms. Thorpe's Fee Petition

On March 29, 2010, Ms. Thorpe filed a petition for guardian's fees. The petition was accompanied by a detailed listing of her services rendered and the times devoted to the various services. In her petition, Ms. Thorpe alleged that she had spent 162.6 hours on the case between October 7, 2009, and January 21, 2010. She requested payment for 162.6 hours at the rate of $80 per hour for a total of $13,008, in compensation. Thomas and Suzanne promptly filed an objection to the petition. In their objection, Thomas and Suzanne stated that they did not object to the number of hours for which Ms. Thorpe had billed. Instead, they objected only to her $80–per–hour billing rate. According to Thomas and Suzanne, professional guardians in Highlands County typically charge between $25 and $40 per hour.

On May 4, 2010, Ms. Thorpe filed her final report. In her report, Ms. Thorpe explained that after the settlement was announced at the January 22 hearing, she anticipated the termination of the emergency temporary guardianship within thirty days. However, delays in obtaining the appointment of Thomas and Suzanne to their respective positions had unexpectedly prolonged Ms. Thorpe's service as emergency temporary guardian. On May 4, 2010, Ms. Thorpe filed a supplemental petition for guardian's fees. In the supplemental petition, Ms. Thorpe requested compensation for an additional 33.3 hours at her new billing rate of $85 per hour, for a total of $2830.50 in additional compensation.

The...