THIRD DCA FOUND NO ABUSE OF DISCRETION IN AMOUNT OF FEES AWARDED TO SUCCESSOR GUARDIAN BASED ON THE PROPORTION OF THE WARD’S REMAINING ASSETS TO THE AMOUNT OF FEES AWARDED

Posted on July 21, 2015

In Pierre v. Brown, 2015 Fla. App. LEXIS 10360 (Fla. 3d DCA 2015), the Third District Court of Appeal of Florida (the “Third DCA”) affirmed a decision against the successor guardian, Gerald W. Pierre, (“Appellant”), who incurred fees and costs as a result of the actions of the prior guardian with regard to the person and property of Rodney Brown, (the “Ward”). The Ward was adjudicated incapacitated in 2006 and was initially a ward of the Guardianship Program of Dade County. The initial guardian secured assets for the Ward, liquidated the Ward’s personal property, repaired a residence the Ward had inherited from his mother, reduced the mother’s funeral bill, and recovered compensation paid to a disbarred attorney who had allegedly stolen money from the Ward while serving as personal representative of the mother’s estate. As a result, a deposit of $150,000 was made into a trust for Ward, who was also receiving monthly disability income and rental income from the real property. Most of the Ward’s assets were then paid to the initial guardian in the form of fees. The trial court awarded the initial guardian $100,000 in fees.

Appellant was appointed guardian of Ward in January 2010, and was substituted as trustee of the trust set up for Ward’s assets in November 2010, but did not have control over the estate until 2011. In 2011, the initial guardian filed an additional petition for fees. Notwithstanding Appellant’s objection, the trial court after a hearing awarded the prior guardian an additional $105,250.92 in fees and $1,800 in expert witness fees. The effect of the two fee awards was that nearly all of the liquid assets collected on behalf of Ward were paid out as fees to the former guardian. The remainder of the Ward’s estate was comprised of only somewhere between $40,000 and $75,000 in cash and the home from which the Ward collects rental income. Soon after Appellant was appointed guardian and had access to all of Ward’s assets, he realized that no tax returns had been filed for the ward since 2004, and the income tax and real estate taxes with regard to the Ward’s mother’s estate and real estate had not been paid.  As a result, Appellant hired an accounting firm to prepare the Ward’s outstanding tax returns, hoping to use losses from prior years to offset the income taxes due, and result in a savings to the Ward.  While taxes were reduced by $20,000.00, the accounting firm billed $10,000.00. Appellant then twice sought his fees and costs incurred as well as the fees of the accounting firm. Ultimately, the trial court entered orders significantly reducing the amount of fees sought by Appellant.

The Third DCA upheld the trial court’s orders, stating that it was unable to find that the trial court abused its discretion in determining the award of fees and costs awarded to Appellant, under an abuse of discretion standard. See, Butler v. Guardianship of Peacock, 898 So. 2d 1139, 1141 (Fla. 5th DCA 2005). The Third DCA noted that although the trial court orders may have contained findings of facts which were not supported by the record, the finding did not eliminate the propriety of the fees awarded. The Third DCA’s reasoning was based on the proportion of the Ward’s remaining assets to the amount of fees awarded. The fact that Appellant was in no way responsible for the reduced size of the estate, since the initial guardian had reduced the Ward’s estate not Appellant, did not affect nor change the Third DCA’s holding. The Third DCA affirmed the amount of fees and costs awarded to Appellant and denied Appellant’s motion to disqualify the trial court. 

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 gmednick@mednicklawgroup.com.

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