Bloom v. Bloom , 2017 Fla. App. LEXIS 7403 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
In re Guardianship of Leon Bloom, )
an incapacitated person. )
)
)
MARSHALL BLOOM, individually, )
)
Appellant, )
)
v. ) Case No. 2D16-2985
)
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. )
)
Opinion filed May 24, 2017.
Appeal from the Circuit Court for Sarasota
County; Charles E. Williams, Judge.
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
1
Solely for ease of reference, we will refer to the various Bloom family
members in this opinion by their first names, rather than their common surname.
-2-
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.
2
It does not appear from the record before us that Dorothy's claim has
ever been resolved.
3
There was no argument advanced below or on appeal that the
guardianship proceeding was an improper forum to resolve this trust dispute.
-3-
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."
-4-
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
-5-
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., 135 S. Ct.
1378, 1386 (2015) ("[W]hen 'judicial interpretations have settled the meaning of an
existing statutory provision, repetition of the same language in a new statute' is
-6-
presumed to incorporate that interpretation." (quoting Bragdon v. Abbott, 524 U.S. 624,
645 (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 v. Bismarck
Lumber Co., 314 U.S. 95, 100 (1941))); Carrithers v. Cornett's Spirit of Suwannee, Inc.,
93 So. 3d 1240, 1241 (Fla. 1st DCA 2012) (observing that rule 9.170 "provides a non-
exclusive list of 24 categories of probate and guardianship orders that are appealable").
In itself, then, this list of categories merely illustrates the kinds of probate and
guardianship orders that are considered appealable; the rule's text leaves in place what
had been the traditional formulation of finality for appealable orders in probate and
guardianship proceedings.
Applying that construction of rule 9.170, we conclude that the order
denying attorney's fees here ended the judicial labor needed to adjudicate that issue.
See Fabing v. Eaton, 941 So. 2d 415, 417 (Fla. 2d DCA 2006) ("Generally, an order
denying a motion for attorney's fees is a final, appealable order when that order ends
the judicial labor as to that portion of the case."). And it is beyond dispute that Marshall
was an interested party as defined under the probate code, both as a former personal
representative at the time the fees were incurred and as a current beneficiary of Leon's
-7-
estate. See § 731.201(23), Fla. Stat. (2014); Wheeler v. Powers, 972 So. 2d 285, 287-
88 (Fla. 5th DCA 2008); Carvel v. Godley, 939 So. 2d 204, 208 (Fla. 4th DCA 2006).
Accordingly, we have jurisdiction to consider the appeal of this order, an order we
review de novo. 4 See Country Place Cmty. Ass'n, Inc. v. J. P. Morgan Mortg.
Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010) ("[W]here . . . the circuit
court's determination of entitlement to attorney's fees is based on a conclusion of law
concerning the interpretation of a statute or contractual provision, we employ a de novo
standard of review.").
III.
A.
Marshall asserted three potential bases for recovery of his attorney's fees
in connection with the disqualification of Mr. Soss as the trustee of Leon's trust. We can
dispense with two of them in short order. First, with regard to this court's prior order
awarding attorney's fees in connection with Mr. Soss's unsuccessful certiorari petition,
the circuit court put it well when it rejected Marshall's assertion that his victory in that
prior matter entitled to him to an award of fees in a subsequent matter: Marshall simply
read this court's mandate in the prior proceeding "much broader than the narrow issue
on appeal" actually was. The scope of this court's mandate—and its award of attorney's
fees—in case number 2D15-4864 extended no further than the fees that were incurred
4
Our jurisdictional conclusion would also appear to align with recent
decisions that have addressed the substantive merits in appeals of orders denying
motions or petitions to recover guardians' fees. See, e.g., In re Guardianship of Beck,
204 So. 3d 143, 153 (Fla. 2d DCA 2016) (reviewing the denial of petitions to recover
attorney's fees and costs); Karr v. Vitry, 135 So. 3d 372, 373 n.1 (Fla. 5th DCA 2014)
(concluding that an order denying a ward her guardian's fees was appealable under rule
9.170).
-8-
in litigating the issues that were presented in that proceeding (which, again, revolved
around the propriety of Marshall's substitution in Leon's guardianship proceeding). Cf.
FL-Carrollwood Care, LLC v. Gordon, 72 So. 3d 162, 165 (Fla. 2d DCA 2011) ("[A] trial
court lacks authority to deviate from the terms of the appellate court's instructions on
remand."). The circuit court was prohibited from extending the reach of our order and
mandate beyond those issues, and so we can readily affirm that aspect of the circuit
court's order without further discussion. Cf. Marine Midland Bank Cent. v. Cote, 384 So.
2d 658, 659 (Fla. 5th DCA 1980) (holding that the trial court erred by entering order
awarding attorney's fees beyond scope of mandate and stating that "[w]hen a case is
appealed and the appellate court acts by issuing its mandate, the trial court must follow
the dictate of the mandate and should not stray from it").
As to the second argued basis, Marshall's contention that he is entitled to
compensation of his attorney's fees under a "common fund" theory of recovery, here as
well, we find no cause to disturb the circuit court's ruling.5 Whether or to what extent
Marshall's efforts removing Mr. Soss as the trustee actually conferred a benefit of any
appreciable value to the trust was, as the circuit court observed in its order, "within the
court's discretion to find." It found he was not entitled to recover his attorney's fees on
that basis. Marshall has not explained, and we fail to see, how that discretion was in
any way abused here, and so we affirm that ruling in the order as well.
5
See, e.g., Shriner v. Dyer, 462 So. 2d 1122, 1124 (Fla. 4th DCA 1984)
(holding that beneficiaries of a trust were entitled to recover their attorney's fees and
costs for successfully removing a trustee who had mismanaged the trust's assets under
the "common fund rule," and explaining that "[t]he common fund rule serves to award
attorney's fees 'from a fund or estate which has been benefitted by the rendering of
legal services' " (quoting Estate of Hampton v. Fairchild-Fla. Constr. Co., 341 So. 2d
759, 761 (Fla. 1976))).
-9-
There is, however, one remaining basis Marshall asserted as a potential
avenue for recovering his attorney's fees in seeking Mr. Soss's disqualification as the
trustee of Leon's trust, section 736.1005 of the Florida Statutes. On this point, the
circuit court's order stated only that there was "no statutory or contractual basis for
attorney's fees." That is incorrect. Section 736.1005 states: "Any attorney who has
rendered services to a trust may be awarded reasonable compensation from the trust."
Since the probate court assumed jurisdiction over the trust and this underlying dispute
concerning the trust's trustee, the statute was applicable here and could have provided
a basis for Marshall to recover his attorney's fees. We express no opinion about
whether such an award would be proper under section 736.1005. That, of course, will
be a matter within the circuit court's discretion to first decide. Cf. Saints in Christ,
Temple of Holy Ghost v. Fowler, 448 So. 2d 1158, 1159 (Fla. 1st DCA 1984) ("[W]e do
not imply that an award of attorney's fees is proper in this case . . . . On remand, the
trial judge shall determine entitlement as well as the amount of any attorney's fees,
subject, of course, to appropriate review by this court if sought."). We hold only that the
circuit court should have considered and ruled upon this argument before it denied
Marshall's motion. See Boykin v. Garrison, 658 So. 2d 1090, 1090 (Fla. 4th DCA 1995)
("The law is well settled that a trial court must exercise its discretion where discretion
has been provided . . . ." (citing Glosson v. Solomon, 490 So. 2d 94 (Fla. 3d DCA
1986))). On that basis, we are constrained to reverse the circuit court's order so that the
court can now make a ruling on Marshall's statutory argument for fees.
- 10 -
B.
Having concluded that Marshall's statutory argument to recover his fees
requires further consideration by the circuit court, we pause to address a notification
issue concerning his motion, as there was disagreement below about this issue and
some clarification may be beneficial to the circuit court and the parties on remand.
Section 736.1005(1) includes the following somewhat awkwardly crafted sentence
regarding notice:
The attorney [who has rendered services to a trust] may
apply to the court for an order awarding attorney fees and,
after notice and service on the trustee and all beneficiaries
entitled to an accounting under s. 736.0813, the court shall
enter an order on the fee application.
While ultimately denying Marshall's motion for attorney's fees, the circuit court observed
during the hearing that the trustee and approximately forty named beneficiaries of
Leon's trust should have been provided prior notice of the hearing under this provision
of the statute. Marshall disagreed with the circuit court's reading. Instead, he posits
that he need not have provided notice at the time he filed his motion, only sometime
before the court entered its order on his motion—a view ostensibly supported by the
compound-complex structure of this statute's sentence and the presence of a
dependent, adverbial clause ("after notice and service") that, grammatically, would
seem to relate only to the independent clause it precedes ("the court shall enter an
order on the fee application"). Cf. Fla. Hurricane Protection & Awning, Inc. v. Pastina,
43 So. 3d 893, 900-01 (Fla. 4th DCA 2010) (Farmer, J., dissenting) ("The subordinate
clause functions adverbially, laying down the condition under which the independent
clause will have effect."). Thus, as Marshall would have it, the court's entry of an order
- 11 -
on his fee application would be the operative deadline that implicates the statute's
requirement to furnish notice of that application.
That is a rather peculiar way to read a notice provision. It also elides the
real query—the precise ambiguity, if you will—that this section holds. Neither the
statute's sentence's text, its structure, nor the rules of grammar provide a definitive
answer to the temporal question: When, exactly, does notice under this statute have to
be provided to these parties? We must look to rules of statutory construction for
guidance. Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000) ("[I]f the
language of the statute is unclear, then rules of statutory construction control." (citing
Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984))). Here, the principle of reading the
notice provision in pari materia directs us to other parts of this compound-complex
sentence that a grammatical convention, strictly applied, would otherwise avoid. See
O'Hara v. State, 964 So. 2d 839, 843 (Fla. 2d DCA 2007) (observing that statutory
language ought not to be read in isolation, but "taken in context, so that its meaning
may be illuminated in the light of the statutory scheme of which it is a part" (citing
Thompson v. State, 695 So. 2d 691, 692 (Fla. 1997))); see also Wagner v. Botts, 88 So.
2d 611, 613 (Fla. 1956) ("We deem it proper to adhere to what now appears to be the
better rule which is to treat the rules of punctuation on a parity with other rules of
interpretation."). Within this very sentence, in the first independent clause, a precise
point in time to utilize as a reference point is apparent—the attorney's application for
fees—a point that coincides precisely with when notices of hearings are ordinarily
required. See Stevens v. Nationstar Mortg., LLC, 133 So. 3d 628, 629 (Fla. 5th DCA
2014) (observing that the requirement that all filed pleadings and papers in court
- 12 -
proceedings be served on each party or their counsel "is to satisfy the constitutional
requirement of due process"); see also Fla. R. Jud. Admin. 2.516(a). That is how we
construe this provision. Reading this statute's sentence as a whole, in pari materia, we
hold that an applicant for attorney's fees under section 736.1005 must serve an
application for attorney's fees to the parties identified in the statute contemporaneously
with the filing of the application with the court.
Accordingly, we reverse the circuit court's order to the extent that the court
did not rule upon Marshall's statutory argument to recover his fees. In all other
respects, we affirm the decision below.
Affirmed in part; reversed in part; and remanded.
KHOUZAM and SALARIO, JJ., Concur.
- 13 -