Yazdzik v. Scott
129 So. 3d 482
| Fla. Dist. Ct. App. | 2014Background
- Mark Scott filed petitions to determine incapacity and for an emergency temporary guardian for his aunt, Mary Klatthaar; the court appointed counsel (Michael McGarry) and a three-member examining committee and denied the emergency guardian petition.
- Before a final incapacity determination, Klatthaar died and the incapacity petition was dismissed.
- McGarry, counsel Pamela Keller, and the examining committee sought attorney’s fees and costs; the circuit court awarded fees and directed payment from Klatthaar’s estate.
- Marion Yazdzik, the personal representative of the estate, appealed, arguing the estate could not be charged because no guardianship was ever established.
- The district court analyzed Fla. Stat. ch. 744 (notably sections 744.331 and 744.108) and concluded those provisions do not authorize payment from an alleged incapacitated person’s estate when no guardian is appointed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court-appointed attorney and examining committee fees may be charged to the alleged incapacitated person’s estate when the guardianship petition is dismissed before appointment | McGarry/Keller: fees are authorized and should be paid from the estate despite dismissal | Yazdzik: no guardianship was ever established, statutes do not authorize charging the estate | Reversed: fees cannot be charged to the estate where no guardian was appointed and petition was dismissed |
| Whether section 744.331(7) entitles appointed counsel/examining committee to fees absent a guardian | Counsel: §744.331(7) grants entitlement to reasonable fees generally | Estate: §744.331(7) ties payment to a guardian/ward relationship; dismissal prevents payment from estate | Held: §744.331(7) does not permit payment from estate when no guardian is appointed; only bad-faith petitioner liability is authorized |
| Whether section 744.108 authorizes fee awards to attorneys where no guardian/ward exists | Counsel: §744.108 allows fees for services rendered to the alleged incapacitated person | Estate: §744.108 applies only after a guardian is appointed (to a ward) | Held: §744.108 applies only where a guardianship has been established; it does not apply here |
| Whether the court should fill the statutory gap and require estate payment despite clear statutory language | Counsel: practical concerns about compensation for court-appointed services justify reading liability onto the estate | Estate: Court must follow statutory text; policy changes are for the legislature | Held: Court declines to rewrite statute; urges legislature to address the gap |
Key Cases Cited
- Thorpe v. Myers, 67 So.3d 338 (Fla. 2d DCA 2011) (standards for reviewing statutory entitlement to fees)
- In re Guardianship of J.D.S., 864 So.2d 534 (Fla. 5th DCA 2004) (statutory text controls)
- Rothman v. Rothman, 93 So.3d 1052 (Fla. 4th DCA 2012) (statute prescribing procedure must be followed strictly)
- Faulkner v. Faulkner, 65 So.3d 1167 (Fla. 1st DCA 2011) (noting statutory gap on payment when petition is dismissed)
- Ehrlich v. Allen, 10 So.3d 1210 (Fla. 4th DCA 2009) (fees by appointed counsel must come from petitioner if petition dismissed in good faith)
- Ehrlich v. Severson, 985 So.2d 639 (Fla. 4th DCA 2008) (examining committee fees are not chargeable to potential ward when petition denied)
- State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993) (attorney’s fees only when authorized by statute or agreement)
- In re Guardianship of Cosio, 753 So.2d 134 (Fla. 2d DCA 2000) (fees and costs unavailable absent statutory or contractual authorization)
- King v. Fergeson, 862 So.2d 873 (Fla. 2d DCA 2003) (discussion on risk of uncompensated counsel in incapacity proceedings)