Third District Court of Appeal
State of Florida
Opinion filed May 11, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-479
Lower Tribunal No. 14-4342
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Zaina Matthiesen, etc.,
Appellant,
vs.
In Re: Estate of Laurisse Masri,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Milton
Hirsch, Judge.
Xander Law Group, P.A., and Wayne R. Atkins and Matthew J.
Troccoli, for appellant.
Cole, Scott & Kissane, P.A., and Lissette Gonzalez, for appellees
Sacher Martini Sacher, P.A., and Charles S. Sacher, Esquire; Kelley
Kronenberg, and Dennis S. Klein, Joshua H. Rosenberg and Daniela K.
Pretus (Fort Lauderdale), for appellee Samih K. Masri; Leyla Masri, in proper
person.
Before EMAS, SCALES and BOKOR, JJ.
EMAS, J.
Zaina Matthiesen, the personal representative of the Estate of Laurisse
Masri (“the Estate”), challenges the trial court’s final order awarding
attorney’s fees to counsel and denying her motion for personal
representative fees. We affirm in part and reverse in part, as more fully
explained below.
Matthiesen was appointed personal representative of her mother’s
estate in 2014. She hired attorney Charles Sacher to handle the probate
administration. However, after disputes arose between Matthiesen and her
two brothers, Omar and Samih Masri, Matthiesen also retained separate
litigation counsel to represent her throughout the proceedings below. Samih
and Omar retained attorney Josh Rosenberg to, inter alia, challenge
Matthiesen’s actions as personal representative. Attorney Rosenberg was
initially with the law firm of Markowitz, Ringel, Trusty + Hartog, P.A.
(“Markowitz Ringel”), but he later joined Kelley Kronenberg, and that firm
was substituted in as counsel.
After more than five years of contentious litigation between the
siblings, the estate was resolved in December 2019. Matthiesen moved for
an award of compensation for her services as personal representative, but
each of her brothers objected, contending she had repeatedly breached her
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duties as personal representative and had caused the Estate to incur
unnecessary expenses.
Markowitz Ringel and Kelley Kronenberg also petitioned for an order
authorizing the payment of attorney’s fees and expenses for their legal work
benefitting the Estate. Samih and Matthiesen both petitioned to have those
fees allocated against each other’s share of the Estate. Litigation on these
post-administration issues persisted for another year, but a final hearing was
scheduled for December 15, 2020. On November 22, Matthiesen’s new
attorney, Manuel Rodriguez, filed an emergency motion to continue the final
hearing, claiming he needed 120 days to prepare for the hearing. This
motion was denied by the court.
On December 3, 2020, attorney Sacher moved to withdraw as counsel
for Matthiesen, asserting that the issues to be addressed at the final hearing
were beyond the scope of his retainer. A week later, he filed an amended
motion to withdraw, which was granted the following day (December 12).
Attorney Manuel Rodriguez continued as counsel for Matthiesen.
After the final hearing on December 15, the trial court entered the order
on appeal, awarding attorney’s fees to the Markowitz Ringel firm, the Kelley
Kronenberg firm, and Charles Sacher. The court also ordered that certain of
those fees be borne by Matthiesen, and explained the reasons for this
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allocation. Finally, the court found Matthiesen was not entitled to
compensation for her services as personal representative of the estate. This
appeal followed.
On appeal, Matthiesen contends the trial court erred in (1) allowing
Sacher to withdraw three days before the final hearing; (2) denying
Matthiesen any compensation for her services as personal representative of
the estate; and (3) failing to consider the reasonableness of the fee awards.
As for the court’s decision to allow attorney Sacher to withdraw and to
deny the motion to continue the hearing, we affirm, finding no abuse of
discretion. See Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson v.
Kleinschmidt,
498 So. 2d 453, 454 (Fla. 3d DCA 1986) (reiterating that court
approval of an attorney’s motion to withdraw in a civil case “should be rarely
withheld and then only upon a determination that to grant said request would
interfere with the efficient and proper functioning of the court (quoting Fisher
v. State,
248 So. 2d 479, 486 (Fla. 1971))); Alter v. Alter,
473 So. 2d 775,
776 (Fla. 3d DCA 1985) (holding: “In a civil case an attorney’s withdrawal
does not give his client an absolute right to a continuance. A continuance
under such circumstances is still a matter within the court’s discretion”).
We also affirm the trial court’s denial of Matthiesen’s motion for an
award of personal representative fees, again finding no abuse of discretion
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in such decision. See § 733.617(7), Fla. Stat. (2021); Bock v. Diener,
571
So. 2d 30 (Fla. 3d DCA 1990); In re Paine’s Estate,
174 So. 430, 434 (Fla.
1937) (holding it is within court’s discretion to deny fees to personal
representative who “did not give proper attention to his duties”).
Finally, as for the order awarding attorney’s fees to Charles Sacher,
and the Markowitz Ringel and Kelley Kronenberg firms, we affirm in part and
reverse in part. Matthiesen has commendably conceded that she stipulated
below to the reasonableness of Sacher’s fees and costs, so we affirm that
portion of the final order. However, we must reverse the award of fees to
both Markowitz Ringel and Kelley Kronenberg because the trial court failed
to articulate the requisite findings under Florida Patient’s Compensation
Fund v. Rowe,
472 So. 2d 1145, 1151 (Fla. 1985). As this court has
previously held, Florida law requires that the trial court articulate its findings
on the Rowe factors, and failure to do so requires reversal. See Babun v.
Stok Kon + Braverman, 46 Fla. L. Weekly D2318 (Fla. 3d DCA Oct. 27,
2021). We remand for any additional hearing as may be required, and for
the trial court to amend its order as to the fee awards to Markowitz Ringel
and Kelley Kronenberg to articulate its findings on the Rowe factors, and for
further proceedings consistent with this opinion.
Affirmed in part, reversed in part and remanded with directions.
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