DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LAWRENCE T. REID, JR.,
Appellant,
v.
GUARDIANSHIP OF MARGARET REID and JAMES P. DILLON,
Appellees.
No. 4D15-3532
[July 10, 2019]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Janis Brustares Keyser, Judge; L.T. Case No.
502014GA000267XXXXMB.
Lawrence T. Reid, Jr., Boca Raton, pro se.
Beverly A. Pohl, P.A. of Broad and Cassel LLP, Fort Lauderdale, and
Holly O’Neill of Broad and Cassel, West Palm Beach, for appellee James P.
Dillon.
ON MOTION FOR REVIEW OF ORDER ON PETITION FOR ORDER
AUTHORIZING PAYMENT OF APPELLATE ATTORNEY’S FEES
WARNER, J.
Appellant has filed a motion to review the trial court’s order awarding
appellate fees in this case. This court granted appellate fees to the former
guardian in an appeal of an order granting attorney’s fees. On remand,
the trial court held a hearing and awarded $17,125 for appellate attorney’s
fees. Because the trial court failed to consider the nature and value of the
guardianship estate in determining the reasonableness of the fee pursuant
to section 744.108(2), Florida Statutes (2018), we grant review, reverse the
order of the trial court, and remand for further proceedings.
In the appeal which generated the appellate fees, the appellant had
challenged the trial court’s order awarding attorney’s fees to the then-
guardian of appellant’s mother. This court affirmed the award and granted
appellate attorney’s fees based upon section 744.108(8), which allows
attorney’s fees for the review of orders determining an attorney’s fee in a
guardianship. In other words, contrary to other types of proceedings, the
legislature has specifically allowed the collection of “fees on fees.” These
fees are assessable against the guardianship estate, unless the court finds
them “substantially unreasonable” after a determination under section
744.108(2).
At the hearing on fees, both appellant and the current guardian
objected to the appellate fees. The appellate attorney, a board-certified
appellate attorney, testified as to her experience and hourly rate, which
she stated was reasonable for persons with her qualifications and the
practice in which she engaged. She also testified as to the hours expended.
On cross-examination, she explained several of the hourly entries. The
guardian (through counsel) asked whether the appellate attorney had
reviewed any information regarding the guardianship’s assets, and she
had not. During closing argument, the guardian noted that the nature
and extent of the guardianship’s assets must be considered, and that the
attorney has a responsibility to look at the size of the estate and consider
the assets available in determining the extent of representation. The
guardian asked the court to take judicial notice of the file as to the assets
in the estate, which she claimed was bankrupt. The court took the matter
under advisement.
In its order awarding fees, the court found the hourly rate to be
reasonable, as well as the hours expended, and determined the fee to be
$17,125 for the appellate representation. It specifically stated that it did
not consider the nature and value of the guardianship estate because no
evidence had been presented as to it. Appellant seeks review of this order.
Section 744.108(2), Florida Statutes, provides the criteria that the court
shall consider in determining a reasonable fee in a guardianship
proceeding:
(2) 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;
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(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;
(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.
Whether the fees claimed are reasonable requires an evaluation of all of
the foregoing criteria. In re Guardianship of Shell,
978 So. 2d 885, 890
(Fla. 2d DCA 2008) (“[T]he legislature has prescribed certain factors that
the probate court must consider when determining whether the fee
requested by the guardian is reasonable[.]”). The requesting party must
establish the reasonableness of the fees, and thus the criteria required in
the statute.
Id.
Here, that burden was on the party requesting the fees. While there
was no evidence presented at the hearing, the guardian asked the court to
take judicial notice and to review the file, which would provide an inventory
and enable the court to evaluate the reasonableness of the request in light
of the amount of assets. The court did not consider the nature and value
of the guardianship assets. The court had an obligation to do so and factor
the nature and value of the estate into its calculation of the reasonableness
of the fee. It seems to us that it would be entirely unreasonable to award
a substantial fee against the guardianship estate when it has no
appreciable assets.
We have established in Romano v. Olshen,
153 So. 3d 912, 918-19 (Fla.
4th DCA 2014) (alterations in original), that the most important part of
guardianship law is the protection of the ward:
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The “overwhelming” public policy of guardianship law “is the
protection of the ward.” Hayes v. Guardianship of Thompson,
952 So. 2d 498, 505 (Fla. 2006). Part of the expressed
legislative intent of Chapter 744 is to assist a ward “in meeting
the essential requirements for [his] physical health and safety,
in protecting [his] rights, in managing [his] financial
resources, and in developing or regaining [his] abilities to the
maximum extent possible.” § 744.1012, Fla. Stat. (2012).
Chapter 744 is to be “liberally construed to accomplish this
purpose.”
Id.
By approving the reasonableness of fees, regardless of ability of the estate
to pay fees and to provide the basic care of the ward, the protection of the
ward may have taken a back seat to the attorney’s compensation in
violation of the public policy of the guardianship law.
Consideration of the nature and value of the guardianship property is
mandatory in determination of the fees in a guardianship case. The court
erred in setting the reasonableness of the fees without this information.
We thus reverse the order and remand for further consideration.
GROSS and FORST, JJ., concur.
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