Casey v. Jensen , 2016 Fla. App. LEXIS 4445 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MARIE CASEY; BRIAN P. BATTAGLIA, )
ESQUIRE; BATTAGLIA, ROSS, )
DICUS & McQUAID, P.A.; ALAN M. )
GROSS, ESQUIRE; and ALAN M. )
GROSS, P.A., )
)
Appellants/ )
Cross-Appellees, )
)
v. ) Case No. 2D14-3491
)
PEGGY ANN JENSEN, )
)
Appellee/ )
Cross-Appellant, )
)
and )
)
MARTHA BOMBARDI, )
)
Appellee. )
________________________________ )
Opinion filed March 23, 2016.
Appeal from the Circuit Court for
Pinellas County; Lauren C. Laughlin,
Judge.
Timothy W. Weber and Joseph P.
Kenny of Weber, Crabb & Wein, P.A.,
St. Petersburg, for Appellants/Cross-
Appellees.
Joseph W. Fleece, Clearwater, for
Appellee/Cross-Appellant Peggy Ann
Jensen.
Robert Persante, Zackary T.
Zuroweste, and Darren M. Stotts of
The Persante Law Group, P.A.,
Clearwater, for Appellee Martha
Bombardi.
KELLY, Judge.
This appeal arises from a final judgment awarding attorney's fees against
appellant Marie Casey and her attorneys following her unsuccessful attempt to
reestablish a lost will purportedly executed by her late husband. Casey's petition
survived a motion for summary judgment and a motion for involuntary dismissal during
trial; however, at the conclusion of the trial the court was not persuaded by her evidence
and it denied her petition. Appellees, Peggy Ann Jensen and Martha Bombardi, who
had opposed the petition, then sought fees pursuant to section 57.105, Florida Statutes
(2010). Finding Casey's claim without adequate factual support, the trial court granted
Bombardi's motion for section 57.105 fees. The trial court denied Jensen's motion for
section 57.105 fees on procedural grounds, a ruling Jensen has challenged in her
cross-appeal.
On appeal, Casey challenges the award of section 57.105 fees to
Bombardi on substantive and procedural grounds. We conclude the trial court erred
when it found Casey's petition was without adequate factual support and accordingly
reverse. In light of this, we do not address Casey's argument that Bombardi's motion
was procedurally defective. As to the cross-appeal, we conclude that even if the trial
court had erred in finding that Jensen's motion was procedurally deficient, a matter we
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do not reach, any error was harmless because Jensen's motion, like Bombardi's, was
based on section 57.105 and an award pursuant to that statute would have been
erroneous.
To succeed on her petition, Casey needed to establish her late husband,
Daniel Casey, in fact executed a will.1 At the outset of the litigation, Casey relied on the
affidavits of Glenn Brown, the attorney who had prepared a will for her late husband in
1988. In the affidavits, Brown stated that Daniel had executed the will in early 1989
before a notary and two witnesses. He also swore it was his routine practice to keep
the original will in his office but he could not locate it because he had retired in 2005 and
his files had been destroyed.
Brown was later deposed and his deposition, which was read at trial,
confirmed the accuracy of the affidavits except to say that he kept conformed copies of
wills, not originals. Brown testified that he specifically recalled preparing the will, but he
did not have a specific independent recollection of seeing Daniel sign it in front of him,
although he believed Daniel came to his office to sign the will in early 1989:
Q: Do you have any doubt that in early 1989 Daniel Casey
came into your office, in your presence, your secretary’s
presence, in the presence of at least one (1) other person,
and—when he executed the will in your office?
A: That’s a difficult question to answer. I think what I was
trying to say earlier was that my recollection was that Dan
came in and signed it. That was my recollection. And did
I—do I specifically recall sitting down watching him sign it?
No. I, I believe—now that’s just a belief and it’s certainly
not proof beyond a reasonable doubt—but I, I believe, or I
wouldn’t have signed this [affidavit], that Dan came in and—
1
We recognize Casey had other hurdles to overcome in order to prevail,
but the absence of proof of execution was the specific failing the appellees raised in
support of their motion for section 57.105 attorney's fees.
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****
I believe—now, that’s just my belief—I believe that Dan
came in and signed this Will. And the reason I believe that
is that he was, he was concerned about getting it done,
so—and we went into a lot of detail on this. And I knew the
history of his brother and what he had done, you know as
far as writing "Grease." But I have no mathematic—I
wouldn’t say with mathematical certainty.
This passage was the basis for the appellees' contention that they were entitled to fees
under section 57.105.
Section 57.105(1), Florida Statutes (2010), provides:
Upon the court’s initiative or motion of any party, the court
shall award a reasonable attorney’s fee, including
prejudgment interest, to be paid to the prevailing party in
equal amounts by the losing party and the losing party’s
attorney on any claim or defense at any time during a civil
proceeding or action in which the court finds that the losing
party or the losing party’s attorney knew or should have
known that a claim or defense when initially presented to the
court or at any time before trial:
(a) Was not supported by the material facts necessary to
establish the claim or defense; or
(b) Would not be supported by the application of then-
existing law to those material facts.
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)).
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We conclude that under the circumstances of this case, the trial court
abused its discretion in awarding fees against Casey and her attorneys. As in Siegel,
we need look no further than the trial court's own comments to support our conclusion.
See id. at 212.
In denying the motion for involuntary dismissal during the trial, the court
stated:
Obviously the appellate court[s] are loathe to approve grant
[sic] of involuntary dismissals. They tend to side on having
the cases tried on their merits.
In this case, although the evidence on one side is certainly
thin, I’m going to deny the motion for involuntary dismissal
and allow all of the evidence to be considered in this case.
Not being allowed to determine weight, and I have some
concerns about the Kero[2] case, but I have not in my own
mind made up my mind what that means, what that case
means.
In its ruling on the motion for attorney's fees, the trial court stated:
In the instant case the petitioner’s attorneys may have
reasonably believed that their claim had merit when it was
filed, based upon Mr. Brown’s affidavits. The court
observes that Mr. Brown’s later deposition revealed it had
no merit. The court notes that the tentative nature of his
deposition testimony differed greatly from the emphatic
nature of his statements in both affidavits. Since he did not
testify at trial, his deposition testimony offered at trial was
his last statement on the signing of the will.
****
Instead of acknowledging the absence of any competent
evidence of execution, the petitioners continued to maintain
2
In re Estate of Kero, 591 So. 2d 675 (Fla. 4th DCA 1992), was cited to
the trial court by Casey for the proposition that an unsigned copy of the original will is
sufficient to constitute a correct copy for the purposed of establishing the contents of a
lost will and that the testimony of the drafting attorney was sufficient to establish a lost
will.
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in their arguments and pleadings that the will had been
executed. To establish a lost or destroyed will so as to
entitle it to probate, there must first be sufficient evidence of
its due execution and, prior existence. As stated in the
probate rules: "In all proceedings contesting the validity of
a will, the burden shall be upon the proponent of the will to
establish prima facie its formal execution and attestation."
Fla. Prob. R. 5.275. Prima facie evidence is evidence
sufficient to establish a fact unless and until rebutted. State
v. Kahler, 232 So. 2d 166, Fla. 1970 [sic]. The evidence
must be competent and substantial. In order to be
competent and substantial, the evidence must be credible;
the memories of the witnesses must be clear and
unconfused; the facts must be distinctly remembered and
the testimony must be precise and explicit. In Re Davey,
645 So. 2d 398 (Fla. 1994). The testimony of Mr. Brown did
not approach a competent and substantial standard.
Initially, we note that the trial court evaluated whether Casey 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 we have described as facts sufficient to establish a fact if
accepted. See Siegel, 71 So. 3d at 211. The trial court's pronouncement also reflects it
had ultimately rejected Brown's testimony because he seemed tentative in comparison
to his earlier affidavits. In other words, Casey presented evidence in the form of
Brown's recollection, and the trial court weighed it and ultimately rejected it. This is also
reflected in the trial court's order rejecting Casey's petition where it references Brown's
lack of "conviction" that the will was ever signed.
While the facts in this case are not as clear-cut as those in Siegel, we
nevertheless find that as in that case, the record here cannot support a conclusion that
Casey had no evidence to support her claim. Rather, she presented evidence that if
accepted would have established that Daniel had executed the will. Finally, we cannot
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ignore the fact that the trial court denied both a summary judgment motion and a motion
for involuntary dismissal at trial. We cannot reconcile the trial court's finding that Casey
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. For all these
reasons, we conclude the trial court abused its discretion when it awarded section
57.105 fees against Casey.
Because of our resolution of this issue, it is unnecessary to reach the
procedural issues raised in the appeal and the cross-appeal. Our conclusion that
Casey's claim did not meet the standard for imposing fees under section 57.105
necessarily requires that we reject Jensen's alternative argument on cross-appeal that
the trial court should have exercised its inherent authority to sanction a party for bad
faith litigation. Accordingly, we affirm the denial of attorney's fees to Jensen and
reverse the portion of the final judgment that awards attorney's fees in favor of
Bombardi.
Affirmed in part; reversed in part.
VILLANTI, C.J., and LUCAS, J., Concur.
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