2d DCA: Can a judge cut your attorney's fees in a contested guardianship proceeding without explaining why?
In re Guardianship of Ansley, 94 So.3d 711 (Fla. 2d DCA August 17, 2012)
As I recently wrote here, a judge's attorney's fee order is automatically subject to reversal if it doesn't contain detailed findings of fact explaining why and how the judge arrived at his or her final fee-award conclusions.
Transparency in this context is not a luxury; it's the bare minimum we have a right to expect of our judiciary. Here's how our supreme court articulated this crucially important point in Fla. Patient's Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985):
[G]reat concern has been focused on a perceived lack of objectivity and uniformity in court-determined reasonable attorney fees. Some time ago, this Court recognized the impact of attorneys' fees on the credibility of the court system and the legal profession when we stated:
There is but little analogy between the elements that control the determination of a lawyer's fee and those which determine the compensation of skilled craftsmen in other fields. Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney's fee is, therefore, a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It does more than that. It brings the court into disrepute and destroys its power to perform adequately the function of its creation.
Baruch v. Giblin, 122 Fla. 59, 63, 164 So. 831, 833 (1935).
Can a judge cut your attorney's fees in a contested guardianship proceeding without explaining why? NO
Turning now to the linked-to case above. In this contested guardianship proceeding the former guardian's attorney's fees were contested. As explained by the 2d DCA, at the end of the fee hearing the petitioning attorney submitted a proposed fee order containing the kind of detailed findings of fact necessary for a properly drafted fee order. In other words, the petitioning attorney did his job. The trial judge then simply crossed out the $21,694.52 figure reflected at the end of the proposed fee order and wrote the amount of $16,520 above it. The trial judge gave no explanation for why he reduced the fee request by almost 1/4 or $5,174. In other words, as explained by the 2d DCA, the trial judge did not do his job.
The amount that the circuit court authorized the guardian to pay Mr. Martin is obviously less than the sum supported by the findings in the order concerning the reasonable hourly rates, the time expended, and the expenses incurred. Undeniably, there is an internal inconsistency in the order; the amount of fees and expenses awarded does not equal the amount of fees and expenses that the circuit court found were reasonable.
. . .
A comparison of the amount of the actual award in the order under review and the amount requested by Mr. Martin indicates that the circuit court intended to award less than the full amount sought in the petition. However, we do not know what led to the circuit court's ruling. The above-noted internal inconsistency in the order results in the lack of any meaningful findings concerning the reasonable hourly rates and the number of hours compensated. The order also omits any statement of other factors that the circuit court considered in reducing the amount requested. These deficiencies make it impossible for this court to engage in meaningful appellate review of the order on appeal. . . .
In short, we are unable to determine the basis for the circuit court's award. It follows that we also cannot determine whether there is competent, substantial evidence in the record to support the award. Accordingly, we reverse the order under review. . . . We remand for the circuit court to enter a new order that sets forth the basis for the award, including the hours determined to be compensable, the hourly rate, and the other factors considered in arriving at the award. . . . The order must also itemize the costs allowed.
The 2d DCA obviously reached the right conclusion; all they're doing is telling the trial judge to explain his ruling. Which is why it was disappointing to read Judge Villanti's special concurrence in which he makes clear he doesn't really understand why it's so important for judge's to explain their fee rulings.
While Mr. Martin is entitled to ask the court to specify exactly why it chose the amount it did, what is really to be gained in so asking? In my view, a request for an order that identifies how Mr. Martin overcharged the ward's estate in the hopes that the trial court will suddenly agree that it abused its discretion in not awarding the full amount requested in the first instance is simply fodder for further litigation and a second appeal.
Respectfully, does Judge Villanti not understand that the amount of the fee ruling isn't the point of the majority's opinion (if properly drafted, the amount of a fee order is almost untouchable on appeal); what really matters in terms of this appellate decision is the message it sends to trial judges: how you explain your fee rulings is just as important as what your final rulings are. In fact, as stated by our supreme court, not explaining yourself in a fee order is "a species of social malpractice" that "brings the court into disrepute and destroys its power to perform adequately the function of its creation." So yes, there is much to be gained by sending this case back to the trial judge and ordering him to please explain the basis of his ruling.
3d DCA:
How to draft attorney's fees and costs orders that won't get reversed on appeal:
Can the 5-day mail rule buy you more time to file your will contest? NO
Everyone pays their own legal fees, and trustees get to pay their fees from trust assets. That's the norm, and where you need to start from if you're representing a trustee in any litigation. But you can't stop there. From beginning to end, each decision made in any case involves its own distinct
There's not a lot of Florida case law out there addressing contingent fees in probate cases. So the linked-to opinion above should be of special interest to any probate litigator taking cases on a contingency fee basis. What this case makes painfully clear is that Florida law shifts 100% of the risk of NOT getting paid in contingency cases to lawyers who are prematurely discharged by their clients, even if the discharge is without cause and the fee agreement contains a fallback hourly-fee payment clause (a “discharge clause”).
My experience has been that judges usually don't pull the trigger on this sort of sanction until things get really, really bad. By then, there's no doubt the wrongdoer is acting way out of bounds, and the court simply enters an order assessing the winning side's attorneys' fees against the losing side. What's wrong with this picture is that busy trial-court judges may be tempted to NOT include detailed findings of fact in their fee orders. Trial lawyers need to guard against this omission if they want to ensure their hard-fought-for fee orders stand up on appeal. The 3d DCA recently ruled that an attorney's fee order without supporting detailed findings is per se reversible error [
In this case a father signed a durable POA granting his son ("Joseph") authority over his property while he underwent treatment for leukemia, tuberculosis "and other medical infirmities." The POA was challenged in court by Joseph's mother and two sisters. Before the court could rule on the merits of the case, Joseph's father died. At that point Joseph sought to have the case dismissed as moot. Joseph also filed a "renunciation" of his powers under the POA.
The linked-to opinion above is the last gasp of bitter litigation swirling around the $100 million estate of Palm Beach socialite Pedro Morrison, who died in 2003 [
appellate judges would have come to a different conclusion. Here's how the Florida Supreme Court put it in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980): "the appellate court must fully recognize the superior vantage point of the trial judge . . . . If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.”