       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 21, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2314
                     Lower Tribunal Nos. 15-362, 14-6726
                             ________________


                    Michael J. Schlesinger, etc., et al.,
                                   Appellants,

                                        vs.

                                 Anita Jacob,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Bernard S.
Shapiro, Judge.

     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.

      EMAS, J.
      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

Ansely, 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.


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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:

      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;

      (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;




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      (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.

      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.

      ROTHENBERG, C.J., concurs.




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      LUCK, J., concurring specially:

      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) (“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.”). 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) (“[T]he suggestion that each three-

judge panel may rule indiscriminately without regard to previous decisions of the

same court is totally inconsistent with the philosophy of a strong district court of

appeal which possesses the responsibility to set the law within its district.”).

      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. (“The legislative power of the state shall be vested in a

legislature of the State of Florida, consisting of a senate composed of one senator

elected from each senatorial district and a house of representatives composed of



                                           5
one member elected from each representative district.”); id. Art. II, § 3 (“The

powers of the state government shall be divided into legislative, executive and

judicial branches. No person belonging to one branch shall exercise any powers

appertaining to either of the other branches unless expressly provided herein.”). 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, 74 A.3d 860, 873 (N.J. 2013) (“Legislation reflects

the will of the people as enacted through their elected representatives.”). It upsets

the delicate compromises and give-and-take that go into the legislative process.

See Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017)

(Gorsuch, J.) (“Legislation is, after all, the art of compromise, the limitations

expressed in statutory terms often the price of passage . . . .”). There are others.

       But there is a specific harm in adding the requirement that an attorney’s

services must benefit the ward or the ward’s estate.           Wards are vulnerable.

Whether by age or incapacity, a guardian has to be appointed to make decisions on

a ward’s behalf. Too often in our community, wards are taken advantage of by con

artists,   and   even   unscrupulous    family    members,     financial   institutions,

professionals, and health care providers.        By authorizing attorney’s fees for

services rendered to the ward, the legislature sought to encourage concerned family

members and other interested parties to investigate abuses of a ward and to bring



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good-faith claims to the probate court. Those claims may not be successful in the

end; it may turn out that the ward is not being taken advantage of or abused; but

family members and other interested parties are rendering services to the ward by

making sure they are well cared for and that the guardian is doing his or her job.

By authorizing attorney’s fees for services rendered to the ward, the legislature has

essentially asked family members and interested parties, the ones best suited to

watch over the ward, to be vigilant in protecting the ward’s rights and bring to the

trial court’s attention good-faith concerns that the ward is being abused. As the

legislature explained,

      it is the purpose of [the guardianship act] to promote the public
      welfare by establishing a system that permits incapacitated persons to
      participate as fully as possible in all decisions affecting them; that
      assists such persons in meeting the essential requirements for their
      physical health and safety, in protecting their rights, in managing their
      financial resources, and in developing or regaining their abilities to
      the maximum extent possible; and that accomplishes these objectives
      through providing, in each case, the form of assistance that least
      interferes with the legal capacity of a person to act in her or his own
      behalf.

§ 744.1012(3), Fla. Stat.

      Consider this case. Even if the ward’s daughter had been unsuccessful in

her petitions, they triggered the trial court to appoint three doctors who were

required to meet with the ward and his family physician and caretaker, diagnose

him, and evaluate his capacity to manage his financial affairs and make medical

decisions. Id. § 744.331(3)(g)1.-6. By filing and litigating the petitions, the


                                         7
attorney rendered services to the ward by making sure he was being properly cared

for and was of sound mind to exercise his rights.

      Adding the requirement that an attorney’s services must benefit the ward, as

our district courts have done, has consequences that were not intended by the

legislature. Under Losh and the other cases cited by the majority opinion, if the

attorney services rendered to the ward are not successful, then the attorney is not

entitled to fees. The result is that attorneys are less likely to represent family

members and interested parties concerned about how the ward is treated because

they will not get paid, and thus, fewer claims by family members and interested

parties will be brought to court. The result is less oversight of the most vulnerable

members of our community. Adding the benefit requirement to section 744.108(1)

discourages attorneys from bringing guardianship claims that would otherwise be

brought.

      The legislature knows how to write attorney’s fee statutes that require the

lawsuit to end successfully. See, e.g., § 713.29, Fla. Stat. (“In any action brought

to enforce a lien or to enforce a claim against a bond under this part, the prevailing

party is entitled to recover a reasonable fee for the services of her or his attorney

for trial and appeal or for arbitration, in an amount to be determined by the court,

which fee must be taxed as part of the prevailing party’s costs, as allowed in

equitable actions.”); id. § 501.2105(1) (“In any civil litigation resulting from [a



                                          8
deceptive and unfair trade practice] involving a violation of this part . . . the

prevailing party, after judgment in the trial court and exhaustion of all appeals, if

any, may receive his or her reasonable attorney’s fees and costs from the

nonprevailing party.”); id. § 448.08 (“The court may award to the prevailing party

in an action for unpaid wages costs of the action and a reasonable attorney’s fee.”).

But section 744.108(1) was not written as a prevailing party attorney’s fee statute.

King v. Ferguson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., 862 So. 2d

873, 874 (Fla. 2d DCA 2003) (Villanti, J., concurring specially) (“Nothing in either

section 744.108(1) or 744.108(2) entitles a party to an award of attorney’s fees

from the ward’s estate simply because that party’s position prevailed in the trial

court.”). It provides for attorney’s fees where services were rendered to the ward.

Losh and the other cases cited by the majority opinion are contrary to the

legislature’s decision to expand the scope of those entitled to attorney’s fees to

those who render services to the ward, and not just to successful parties, as it has

done in countless other statutes.

      The structure of section 744.108 also shows the legislature’s intent that the

benefit resulting from the litigation is not to be considered when determining

whether the attorney is entitled to fees. Subsection (1) is the entitlement section,

and says that an attorney who renders service to the ward is entitled to a reasonable

fee for services rendered. § 774.108(1), Fla. Stat. Once the trial court determines



                                         9
that an attorney is entitled to fees under subsection (1), subsection (2) provides the

criteria for the court to consider in determining the amount of the fee award.

Unlike subsection (1), subsection (2) requires the trial court to consider the

“novelty,” “difficulty,” and “skill required” in rendering services to the ward; the

“result obtained”; the “diligence” and “ability” of the attorney rendering services;

and the ward’s property. Id. § 744.108(2). These factors, unlike in subsection (1),

go to the benefit received by the ward from the attorney’s services. The trial court

is authorized to reduce the fee award to account for the fact that little-to-no benefit

resulted from the services rendered.

        More importantly, what the structure of section 744.108 tells us is that the

legislature knew how to account for the benefit to the ward, and did so in

subsection (2) when considering the amount of the fees.                The legislature

deliberately left the benefit factors out of subsection (1). Losh and the other cases

flip the analysis and consider the benefit factors at the entitlement stage.

       By reading section 744.108(1) to require a benefit to the ward, we make it

harder for family members and interested parties to bring claims on behalf of their

loved ones, undercompensate attorneys who render services to a ward (although

don’t ultimately prevail in the case), and double count certain factors in the

entitlement decision and then again when considering the amount to award. This is

not what the legislature wrote and it is not what it intended.



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      In this case, adding a benefit requirement to section 744.108(1) does not

affect the result because, as the majority opinion notes, the daughter’s petitions

were successful. The attorney prevailed. But in the appropriate case, where the

added language does make a difference in whether the attorney is entitled to fees, I

think we should recede from Losh and read section 744.108 as the legislature

wrote it.




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