DORIS PRICE, DAUGHTER OF PAULINE AUSTIN, APPELLANT,
v.
PAULINE AUSTIN, AN INCAPACITATED PERSON, APPELLEE
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Doris Price appealed a trial court's denial of her petition for attorney's fees in a guardianship incapacity proceeding against her mother, Pauline Austin. The appellate court affirmed the denial, finding the petition was untimely filed under Florida Rule of Civil Procedure 1.525, even though the trial court's stated reasoning was erroneous.
The appellate court affirmed the denial of attorney's fees because the petition was untimely filed under Florida Rule of Civil Procedure 1.525, which requires such motions to be filed no later than 30 days after entry of judgment. Although the trial court's stated reasoning was erroneous, the result was correct.
[1] An attorney is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of a ward.
[2] Attorney services must benefit the ward to be compensable under Florida guardianship law.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“an attorney who has rendered services to the ward ... is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward”
Establishes the statutory entitlement to attorney's fees under section 744.108(1)
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Join FLexlaw to unlock all legal intelligenceDoris Price filed petitions to determine her mother Pauline Austin's incapacity and to appoint herself as guardian. Her sister Carol West opposed the …
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Doris Price appeals an order denying her petition for attorney’s fees in a proceeding that determined that her mother, Pauline Austin, was totally incapacitated. Although the trial court erred in denying fees on the basis stated in the order under review, the petition for fees was untimely filed and, thus, the trial court was right in denying fees, but for the wrong reason. Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644-46 (Fla.1999). Accordingly, we affirm.
Appellant filed petitions to determine the incapacity of and to appoint a guardian for her mother. The petitions were opposed by appellant’s sister, Carol West. The trial court denied appellant’s petition for fees, explaining:
The court previously admonished both daughters that their fight over who *790should be their mother’s guardian would be waged at their expense and not at their mother’s. There was never any question about whether their mother was incompetent, the overreaching question was which daughter should be the guardian. The court will not entertain any request for fees and costs by either daughter for costs and fees associated with this dispute.
Under Florida law, an attorney is entitled to receive a reasonable attorney’s fee for professional services rendered and reimbursement of costs incurred for the benefit of the ward; payment of reasonable compensation is mandatory. § 744.108(1), Fla. Stat. (2008) (“[A]n attorney who has rendered services to the ward ... is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.”); In re Guardianship of Shell, 978 So.2d 885, 890 (Fla. 2d DCA 2008) (Under section 744.108, the circuit court was not “at liberty to award anything more or less than fair and reasonable compensation for the services rendered or monies expended in each individual case.” (quoting Lewis v. Gramil Corp., 94 So.2d 174, 176 (Fla.1957)); Butler v. Guardianship of Peacock, 898 So.2d 1139, 1141 (Fla. 5th DCA 2005) (“Under section 744.108, in order to be entitled to receive attorneys’ fees, the attorney services must benefit the ward.”).
Below, a notice that the proceeding for incapacity was adversary was served on June 12, 2008. On July 7, 2008, the court entered an order determining total incapacity. Over a year later, on September 18, 2009, appellant served a verified petition to approve payment of fees. Florida Probate Rule 5.025(d)(2) provides that, once a proceeding under the probate rules has been declared to be adversarial, it “shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults.” Florida Rule of Civil Procedure 1.525 requires a motion for attorney’s fees to be filed “no later than 30 days after filing the judgment....” In Hays v. Lawrence, 1 So.3d 1176, 1177 (Fla. 5th DCA 2009), the court held that, in a proceeding declared as adversarial, rule 1.525 governed a motion for attorney’s fees filed pursuant to section 733.106(2) and affirmed a denial of a claim for attorney’s fees as untimely under the rule. Although Hays involved a different fee statute than the case before us, section 733.106(2) and section 744.108, applicable here, are similar. Both statutes are legislative expressions of the desirability of the payment of attorney’s fees for services rendered under the specified proceeding.1 Accordingly, because the petition for attorney’s fees was untimely filed under rule 1.525, the trial court’s order denying fees is AFFIRMED.
DAVIS and ROWE, JJ., concur.
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Thorpe v. Myers, 67 So. 3d 338 (Fla. 2d DCA 2011)…ection 744.108(1), “an attorney is entitled to receive a reasonable attorney’s fee for professional services rendered and reimbursement of costs incurred for the benefit of the ward; payment of reasonable compensation is mandatory.” Price v. Austin, 43 So. 3d 789, 790 (Fla. 1st DCA 2010). Under the statute, “the probate court is not ‘at liberty to award anything more or less than fair and reasonable compensation for the services rendered or monies expended in each individual case.’ ” Lutheran Servs., 978 So.…
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Schlesinger v. Jacob, 240 So. 3d 75 (Fla. 3d DCA 2018)…ces 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 mo…
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Guardianship of Len Sanders & the Guardian v. Chaplin, 334 So. 3d 723 (Fla. 1st DCA 2022)…8(1) for the remainder of services found by the trial court to be reasonable and supported by the criteria enumerated in subsection (2). The plain language of section 744.108 does not require a finding of “benefit to the ward” 3 In Price v. Austin, 43 So. 3d 789 (Fla. 1st DCA 2010), our court affirmed a denial of attorney’s fees in a proceeding for incapacity solely on the basis of untimely filing of the petition. as a prerequisite to an award of attorney fees and reimbursement of costs. Accordingly, the o…
Authorities Cited
- Dade Cnty. Sch. Bd. v. Radio Station Wqba, 731 So. 2d 638 (Fla. 1999)
- Lewis v. Gramil Corp., 94 So. 2d 174 (Fla. 1957)
- Butler v. Guardianship OF Mallie S. Peacock, 898 So. 2d 1139 (Fla. 5th DCA 2005)
- In re Guardianship OF Bertha Shell v. Gregory M. McCoskey as court-appointed Guardian Ad Litem for Bertha Shell, 978 So. 2d 885 (Fla. 2d DCA 2008)
- Dixon Alan Hays and Stephen K. Wiedenbeck v. Lawrence, 1 So. 3d 1176 (Fla. 5th DCA 2009)