2nd DCA Reverses Fees Awarded Pursuant to §57.105, Fla. Stat.; Less than Definitive Deposition Testimony as to Witnessing Will Execution does not Necessarily Give Rise to an Unsupported Claim

Posted on March 31, 2016

In Casey v. Jensen, 2016 Fla. App. LEXIS 4445 (Fla. 2d DCA 2016), Marie Casey (“Appellant”) disputed her obligation to pay attorney’s fees following her failed attempt to reestablish a will (“the will”) allegedly executed by her late husband. Peggy Jensen and Martha Bombardi (“Appellees”) had opposed Appellant’s petition to reestablish the will and subsequently sought to collect fees pursuant to Section 57.105, Fla. Stat., which allows for sanctions for raising unsupported claims or defenses. The trial court found Appellants claim without adequate factual support and therefore, granted Appellee, Bombardi’s motion for Section 57.105 fees. However, the court denied Appellee, Jensen’s motion for Section 57.105 fees on procedural grounds which Jenson challenged on cross-appeal.

On appeal to the Second DCA, Appellant challenged the award of Section 57.105 fees to Bombardi on substantive and procedural grounds. The Second DCA agreed with Appellant, finding that the trial court erred when it found Appellant’s petition was without adequate factual support and accordingly reversed the trial court. In its reasoning, the Court pointed out that to succeed on her claim, Appellant needed to establish that her late husband did in fact execute the will. To this end, she relied on the affidavits of the attorney who had prepared a will for her late husband in 1988. In the affidavits, he stated that her husband had executed the will in early 1989 in front of a notary and two witnesses. He also swore it was his routine practice to keep the original will in his office, but that he could not find it because he retired in 2005 and his files had been destroyed. Late, he was deposed and confirmed the accuracy of the affidavits, except that he said it was his prior practice to keep conformed copies of wills, not originals. He testified that he specifically recalled preparing the will, but did not have a specific independent recollection of seeing the late husband sign it in front of him, although he believed that the husband came to his office to sign the will in early 1989. This testimony by the attorney, which left it unclear if the husband did in fact sign the will, was the basis for Appellees’ assertion that they were entitled to fees under Section 57.105.  

Section 57.105 requires a court to award a reasonable attorney’s fee when it finds the losing party or the losing party’s attorney knew or should have known that a claim was not supported by the material facts necessary to establish it. Id. “A claim is ‘supported by the material facts’ within the meaning of the statute when ‘the party possesses admissible evidence sufficient to establish the fact if accepted by the finder of fact.'” Siegel v. Rowe, 71 So. 3d 205, 211 (Fla. 2d DCA 2011) (quoting Albritton v. Ferrera, 913 So. 2d 5, 8 n.1 (Fla. 1st DCA 2005)). Therefore, the Second DCA concluded that under the circumstances of this case, the trial court abused its discretion in awarding fees against Casey and her attorneys. As in Siegel, the Court found it was not necessary to look further than the trial court’s own comments to support its conclusion. 

The trial court analyzed whether Appellant presented competent, substantial evidence using the standard for determining whether evidence is clear and convincing. Section 57.105(1) only requires that a claim be supported by “material facts,” which have described as facts sufficient to establish a fact if accepted. See Seigel, 71 So. 3d at 211. The trial court noted that it had ultimately rejected the testimony because he seemed tentative in comparison to his earlier affidavits; Appellant presented evidence in the form of the attorney’s recollection, and the trial court weighed it and ultimately rejected it.

The Second DCA did not acknowledge, as the trial court did, that the tentative nature or lack of certainty of the attorney in his testimony could be grounds to support a conclusion that Appellant had no evidence to support her claim. Appellant presented evidence that if accepted, would have established that her late husband had executed the will. Further, the Court pointed out that the trial court denied both a summary judgment motion and a motion for involuntary dismissal at trial. As such, the Court could not reconcile the trial court’s finding that Appellant and her attorneys should have known her claim was without factual support with the fact that the trial court found her claim sufficient to survive both motions. Thus, the Court found that the trial court abused its discretion when it awarded Section 57.105 fees against Appellant. Since this issue (that Appellant’s claim did not meet the standard for imposing fees under Section 57.105) was resolved, it was unnecessary for the court to evaluate the procedural issues raised by Appellee, Jensen on cross-appeal.

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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