Schwartz Sladkus Reich Greenberg Atlas LLP (“SSRGA”) recently secured the reversal of a trial court order that erroneously awarded attorney’s fees to a guardian advocate under section 744.108, Fla. Stat. That statute provides that “an attorney who has rendered services to the ward or to the guardian on the ward’s behalf is entitled to a reasonable fee for services rendered … on behalf of the ward.”
The statute only mentions guardianships under chapter 744 of the Florida Statutes, in cases where a ward has been adjudicated incapacitated. However, some attorneys have attempted to use the statute to seek fees for representing guardian advocates appointed under Chapter 393 to assist persons with developmental disabilities, who have not been adjudicated incapacitated.
For example, last year a lawyer obtained an award of attorney’s fees for representing the guardian advocate of a developmentally disabled adult who retained autonomy and all legal rights under Chapter 393 and was never adjudicated incapacitated. The trial court ordered the disabled adult’s father to pay the attorney’s fees because the father had been involved in litigation against the guardian advocate.
The father’s trial counsel argued that section 744.108, Fla. Stat., does not apply. However, the trial court sided with the guardian advocate’s attorney, who cited cases that he claimed supported his views. The trial court entered a judgment awarding fees based on four attorney’s fees orders under various statutes, including an order granting fees under section 744.108, Fla. Stat.
SSRGA represented the father in Florida’s Fourth District Court of Appeal (“Fourth DCA”) and argued for reversal of the judgment. The primary issue concerned the attorney’s fees awarded under section 744.108, Fla. Stat. SSRGA argued that the cases cited by the guardian advocate’s attorney were distinguishable because they involved a guardian under Chapter 744, not a guardian advocate under Chapter 393. SSRGA demonstrated that section 744.108, Fla. Stat., applies to guardians, not guardian advocates. The statute applies to the representation of persons who have been adjudicated incapacitated, which the son was not. SSRGA also argued that even if section 744.108 applied, it would authorize an award to be paid only from the assets of the guardianship estate, not by the father individually.
The Fourth DCA agreed with SSRGA’s arguments and reversed the award of fees based on section 744.108, Fla. Stat. The appellate court held that there was no statutory authority for an award of fees under section 744.108, which does not apply to guardian advocates, and that the statute would allow a fee award only from a guardianship estate, not from a third party such as the father.
In the same appeal, SSRGA also obtained the reversal of an award of attorney’s fees under Fla. R. Civ. P. 1.510(h) in a judgment where the award was based on an order striking an affidavit. SSRGA argued that this portion of the judgment was erroneous because the order striking the father’s affidavit did not award entitlement to fees and costs; it simply reserved jurisdiction to consider entitlement—and the trial court never made a determination of entitlement following that order. The Fourth DCA reversed the award because the trial court erred in awarding fees under rule 1.510(h) without first adjudicating entitlement.
The Fourth DCA remanded for further proceedings and instructed the trial court to reduce the amount of fees in accordance with the reversals on the issues discussed above. SSRGA is pleased that the appeal substantially reduced the amount of the fee judgment against our client and clarified an important point of law regarding section 744.108.