Posted on June 12, 2015

In Acker v. Acker, 2015 Fla. App. LEXIS 8016 (Fla. 4th DCA 2015), Karen and David Acker (“Appellants”) appealed an order of the trial court with regard to the parties’ motion for approval of attorneys’ fees and costs. The motion partially granted Mark Aker’s (“Appellee”) request for payment of fees by the Estate and/or Trust of Stanley Acker. The opinion decided by the Fourth DCA on May 27, 2015 affirmed the trial court on three of the four issues raised by Appellants.

As for the fourth issue, the Fourth DCA found that the trial court appropriately noted that pursuant to Florida probate law a trial court may only order an award for fees and costs that are determined to be “necessary and beneficial to the Estate and/or Trust.” See, Estate of Brock, 695 So. 2d 714, 717 (Fla. 1st DCA 1996); Barnett v. Barnett, 340 So. 2d 548, 550 (Fla. 1st DCA 1976). The trial court found that some of the actions taken by Appellee were “necessary and beneficial” which is why, in accepting the testimony of one of Appellee’s witnesses, the court partially granted Appellee’s request for fees. However, because a subsequent portion of the Order stated that other testimony “supported the conclusion that” Appellee’s conduct was “adverse and detrimental to the best interests of the Estate and Trust” the Fourth DCA found that the trial court’s Order contained an internal inconsistency. Other DCAs have reversed awards of attorneys’ fees and remanded for the trial court to enter a new order which set forth the basis for the award where the original order awarded an amount less than requested by the attorney without an explanation as to why the court ruled the way that it did, creating an “internal inconsistency.” See, In re Guardianship of Ansley, 94 So. 3d 711, 714 (Fla. 2d DCA 2012); see also, Perez v. Perez, 100 So. 3d 769, 772 (Fla. 2d DCA 2012) (reversing an order awarding attorneys’ fees to the wife, in part because the order contained “internal inconsistencies,” including “conflicting findings concerning the reasonable hourly rate for the Wife’s attorneys” and “the hours reasonably incurred by each of the Wife’s attorneys”).

Since the trial court’s subsequent finding that Appellee’s conduct was “adverse and detrimental” conflicted with the court’s award of fees to Appellee based on acceptance of one of his witness’s testimony, the Fourth DCA found the trial court’s Order to be internally inconsistent. The Fourth DCA therefore, reversed and remanded the decision of the trial court on this issue for the trial court to enter a new order that sets forth the basis for the award so that it would not contain an internal inconsistency. The Court noted that the parties presented substantial evidence at the fee hearing and that the trial court may take additional evidence on remand if it believes it necessary, but the trial court is not required to do so. Thus, the internal inconsistency may be addressed by the trial court without further hearings or proceedings. See, Perez, 100 So. 3d at 773.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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