2nd DCA Reverses Trial Court Fee Award, Emphasizing Standards for Bad Faith Sanctions and What is Impermissible in Recovery as Costs

In Anderson v. McDonough, 189 So. 3d 266 (Fla. 2d DCA 2016), William Anderson (“Appellant”) sought review of an order requiring him to pay $51,897 in attorney’s fees and $10,008 in costs to his mother’s estate following his unsuccessful will contest. Appellant’s mother had a will in which she left everything to Appellant’s aunt, excluding Appellant and his brothers. Subsequently, Appellant challenged the will on several grounds. The circuit court upheld the will in a judgment which the Second DCA affirmed in a separate opinion. See Anderson v. McDonough, No. 2D14-1139, 189 So. 3d 266, 2016 Fla. App. LEXIS 5390 (Fla. 2d DCA 2016). However, Appellant also challenged fee and costs awards imposed against him.

In response, his mother’s estate (“Appellee”) filed a motion for fees citing section 733.106(4), Fla. Stat. which provides that when costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid. The statute authorizes an award of fees to be paid from the estate and even from a specific portion of the estate, but it does not authorize the imposition of a fee award against a person beyond what may be paid from his or her share of the estate. Such was conceded by Appellee, but Appellee argued that the fee award was authorized as a sanction for bad faith litigation. 

On appeal, the Second DCA agreed with Appellant, noting that Appellee was not entitled bad faith sanctions under section 57.105, Fla. Stat. because Appellant was never served with a motion under the statute. In an attempt to get around this obvious procedural bar to recovery under the statute, Appellee asserted the inequitable conduct doctrine. However, the Second DCA rejected this, noting that this doctrine is rarely applicable because it applies only in “those extreme cases where a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons.” Nedd v. Gary, 35 So. 3d 1028, 1030 (Fla. 4th DCA 2010) (quoting Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998)). The 2d DCA found that the evidence in the subject case did not fall within one of such extreme cases, therefore, Appellee was not entitled to the sanctions.

Appellant also challenged his mother’s will and argued that she had lacked capacity and, alternatively, had revoked the will by defacement and obliteration. Two of the decedent’s sons testified that she had a lifelong history of incompetence, which would have included the day she executed her will. However, another son disputed this and testified that to his belief, his mother had always been competent. The other son also noted her repeated requests for help in rewriting her will, which he declined. The Court noted that it is rare that such an important legal document contain such extensive handwritten notes as were found in decedent’s will. The Court went on to reason that while the evidence supported the court’s decision to uphold the will, the case was not clear enough to say that Appellant’s litigation was done in bad faith. The Court also noted that the fee motion cited only the statutory basis rejected and that Appellant was never given notice that fees were being sought as a sanction for bad faith conduct. Therefore, the Court reversed the fee award which rendered moot the issue on appeal concerning the absence of findings to support the amount awarded.    

In addition, the Court agreed with Appellant that the gross amount awarded as costs must be reversed because routine overhead is not recoverable as costs. See Northbrook Life Ins. Co. v. Clark, 590 So. 2d 528, 528 (Fla. 2d DCA 1991). Thus, the Court ordered this issue to be remanded for the lower court to recalculate the costs award, omitting overhead expenses.

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.