ZAINA MATTHIESEN, etc. v. IN RE: ESTATE OF LAURISSE MASRI

• Court: District Court of Appeal of Florida
• Decided: May 11, 2022
• Docket: 21-0479
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 11, 2022. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-479 Lower Tribunal No. 14-4342 ________________

Zaina Matthiesen, etc., Appellant,

vs.

In Re: Estate of Laurisse Masri, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch, Judge.

Xander Law Group, P.A., and Wayne R. Atkins and Matthew J. Troccoli, for appellant.

Cole, Scott & Kissane, P.A., and Lissette Gonzalez, for appellees Sacher Martini Sacher, P.A., and Charles S. Sacher, Esquire; Kelley Kronenberg, and Dennis S. Klein, Joshua H. Rosenberg and Daniela K. Pretus (Fort Lauderdale), for appellee Samih K. Masri; Leyla Masri, in proper person.

Before EMAS, SCALES and BOKOR, JJ.

EMAS, J. Zaina Matthiesen, the personal representative of the Estate of Laurisse

Masri (“the Estate”), challenges the trial court’s final order awarding

attorney’s fees to counsel and denying her motion for personal

representative fees. We affirm in part and reverse in part, as more fully

explained below.

Matthiesen was appointed personal representative of her mother’s

estate in 2014. She hired attorney Charles Sacher to handle the probate

administration. However, after disputes arose between Matthiesen and her

two brothers, Omar and Samih Masri, Matthiesen also retained separate

litigation counsel to represent her throughout the proceedings below. Samih

and Omar retained attorney Josh Rosenberg to, inter alia, challenge

Matthiesen’s actions as personal representative. Attorney Rosenberg was

initially with the law firm of Markowitz, Ringel, Trusty + Hartog, P.A.

(“Markowitz Ringel”), but he later joined Kelley Kronenberg, and that firm

was substituted in as counsel.

After more than five years of contentious litigation between the

siblings, the estate was resolved in December 2019. Matthiesen moved for

an award of compensation for her services as personal representative, but

each of her brothers objected, contending she had repeatedly breached her

2 duties as personal representative and had caused the Estate to incur

unnecessary expenses.

Markowitz Ringel and Kelley Kronenberg also petitioned for an order

authorizing the payment of attorney’s fees and expenses for their legal work

benefitting the Estate. Samih and Matthiesen both petitioned to have those

fees allocated against each other’s share of the Estate. Litigation on these

post-administration issues persisted for another year, but a final hearing was

scheduled for December 15, 2020. On November 22, Matthiesen’s new

attorney, Manuel Rodriguez, filed an emergency motion to continue the final

hearing, claiming he needed 120 days to prepare for the hearing. This

motion was denied by the court.

On December 3, 2020, attorney Sacher moved to withdraw as counsel

for Matthiesen, asserting that the issues to be addressed at the final hearing

were beyond the scope of his retainer. A week later, he filed an amended

motion to withdraw, which was granted the following day (December 12).

Attorney Manuel Rodriguez continued as counsel for Matthiesen.

After the final hearing on December 15, the trial court entered the order

on appeal, awarding attorney’s fees to the Markowitz Ringel firm, the Kelley

Kronenberg firm, and Charles Sacher. The court also ordered that certain of

those fees be borne by Matthiesen, and explained the reasons for this

3 allocation. Finally, the court found Matthiesen was not entitled to

compensation for her services as personal representative of the estate. This

appeal followed.

On appeal, Matthiesen contends the trial court erred in (1) allowing

Sacher to withdraw three days before the final hearing; (2) denying

Matthiesen any compensation for her services as personal representative of

the estate; and (3) failing to consider the reasonableness of the fee awards.

As for the court’s decision to allow attorney Sacher to withdraw and to

deny the motion to continue the hearing, we affirm, finding no abuse of

discretion. See Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson v.

Kleinschmidt, 498 So. 2d 453, 454 (Fla. 3d DCA 1986) (reiterating that court

approval of an attorney’s motion to withdraw in a civil case “should be rarely

withheld and then only upon a determination that to grant said request would

interfere with the efficient and proper functioning of the court (quoting Fisher

v. State, 248 So. 2d 479, 486 (Fla. 1971))); Alter v. Alter, 473 So. 2d 775,

776 (Fla. 3d DCA 1985) (holding: “In a civil case an attorney’s withdrawal

does not give his client an absolute right to a continuance. A continuance

under such circumstances is still a matter within the court’s discretion”).

We also affirm the trial court’s denial of Matthiesen’s motion for an

award of personal representative fees, again finding no abuse of discretion

4 in such decision. See § 733.617(7), Fla. Stat. (2021); Bock v. Diener, 571

So. 2d 30 (Fla. 3d DCA 1990); In re Paine’s Estate, 174 So. 430, 434 (Fla.

1937) (holding it is within court’s discretion to deny fees to personal

representative who “did not give proper attention to his duties”).

Finally, as for the order awarding attorney’s fees to Charles Sacher,

and the Markowitz Ringel and Kelley Kronenberg firms, we affirm in part and

reverse in part. Matthiesen has commendably conceded that she stipulated

below to the reasonableness of Sacher’s fees and costs, so we affirm that

portion of the final order. However, we must reverse the award of fees to

both Markowitz Ringel and Kelley Kronenberg because the trial court failed

to articulate the requisite findings under Florida Patient’s Compensation

Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985). As this court has

previously held, Florida law requires that the trial court articulate its findings

on the Rowe factors, and failure to do so requires reversal. See Babun v.

Stok Kon + Braverman, 46 Fla. L. Weekly D2318 (Fla. 3d DCA Oct. 27,

2021). We remand for any additional hearing as may be required, and for

the trial court to amend its order as to the fee awards to Markowitz Ringel

and Kelley Kronenberg to articulate its findings on the Rowe factors, and for

further proceedings consistent with this opinion.

Affirmed in part, reversed in part and remanded with directions.