In re Guardianship of Bloom, — So.3d —-, 2017 WL 2270124 (Fla. 2d DCA May 24, 2017)

If you’re the trustee of a trust, F.S. 736.0816(20) tells us you’re presumptively entitled to hire attorneys to help you do your job and to pay them a reasonable fee for their services. On the other hand, if you’re not the trustee, F.S. 736.1005(1) tells us the presumption’s the opposite: you’re not entitled to payment of your attorney’s fees with trust assets unless a judge concludes your attorneys “rendered services” to the trust, and all of the trust’s beneficiaries with a stake in the outcome have been given “notice” and an opportunity to be heard before the judge rules on your motion. The mechanics of that notice requirement are a bit ambiguous under the statute, which the 2d DCA does a good job of explaining/interpreting in this case.

Case Study:

In this case the settlor’s nephew, who is also a beneficiary and former personal representative of his uncle’s estate, found himself litigating against the successor trustee of his uncle’s trust. Nephew not only succeeded in getting the trustee’s writ of certiorari dismissed on appeal, the 2d DCA also granted his motion for appellate fees. And nephew scored another win when the trial court granted his motion to remove the trustee he’d been litigating against. This is the sort of work that doesn’t directly enhance the value of a trust fund (it doesn’t bring new dollars into the trust), but has been the basis for attorney’s fees under a probate statute applying the same exact “rendered services” test used in our trust code (see here).

At the trial court level the probate judge said no to nephew’s motion for fees based in part upon the conclusion that there’s “no statutory or contractual basis for attorney’s fees.” Wrong answer says 2d DCA.

[F.S. 736.1005(1)] was applicable here and could have provided a basis for [nephew] to recover his attorney’s fees… On that basis, we are constrained to reverse the circuit court’s order so that the court can now make a ruling on [nephew’s] statutory argument for fees.

And here’s how the 2d DCA teed up the notice issue in this case:

Having concluded that [nephew’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.

Here’s the problem. When nephew filed his motion for fees he didn’t serve a copy of his motion on the trustee or the trust’s beneficiaries, which the probate judge pointed out was a problem.

[T]he 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.

I’m guessing this oversight wasn’t intentional, but for whatever reason nephew’s counsel didn’t simply ask for a do-over after giving everyone notice. Instead, he doubled down, arguing that the statutory notice requirement applied before the judge ruled, not before the hearing on his motion.

[Nephew] 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”). … Thus, as [nephew] would have it, the court’s entry of an order on his fee application would be the operative deadline that implicates the statute’s requirement to furnish notice of that application.

Nice try, but no cigar. According to the 2d DCA, if you’re asking for attorney’s fees under F.S. 736.1005(1), you need to give notice to the trustee and the trust’s beneficiaries before you have your hearing, not sometime after the hearing but before the judge rules. Here’s how the 2d DCA parsed the operative statutory text to get to its common sense final ruling.

[Nephew’s proposed interpretation] 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. … 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. … 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 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.