Geary v. Butzel Long, P.C., — So.3d —-, 2009 WL 1606034 (Fla. 4th DCA Jun 10, 2009)

4th DCA: “Before the trial court may assesses fees against a beneficiary’s share of an estate there must be a finding of bad faith or wrongdoing by the beneficiary or other circumstances which would warrant such an assessment.”

In the commercial litigation context F.S. § 57.105 is a powerful tool for curbing abusive litigation tactics: if you engage in bad faith or frivolous litigation, not only will you eventually lose, you’ll also end up paying the other side’s legal fees. This is a commonly-used device that everyone knows about and has been the subject of multiple Florida Bar Journal articles [click here, here, here, here]. F.S. § 57.105 also occasionally pops up in the probate-litigation context [click here].

What’s often overlooked is that Florida’s probate code provides a similar remedy that’s just as powerful, but doesn’t require you to jump through any of the procedural hoops built into F.S. § 57.105. In both F.S. § 733.106(4) and F.S. § 733.6175(2), a probate judge is given the express statutory authority to determine from whose share of the estate attorneys fees incurred in frivolous or bad faith litigation will be paid. You might want to go this route in lieu of a personal judgment for fees against a bad actor under F.S. § 57.105 because you don’t have to worry about collecting on your judgement: the probate-code route allows you to simply go after assets already available and subject to the court’s authority as part of the probate estate.

Here’s how the 4th DCA explained the law on when a probate judge can shift the winning side’s attorney’s fees against one of the estate’s beneficiaries for frivolousness:

In In re Estate of Lane, 562 So.2d 352 (Fla. 4th DCA 1990), we examined the propriety of a probate court’s order assessing attorney’s fees from a will contest proportionally against the specific beneficiaries as well as the residuary estate. We noted that section 733.106(4), Florida Statutes, permits the court to direct from what part of an estate a fee assessment shall be paid (just as section 733.6175(2) does). However, we explained:

This section does not give the trial court unbridled discretion to award fees from any part of the estate. Before the trial court may assesses fees against a beneficiary’s share of an estate there must be a finding of bad faith or wrongdoing by the beneficiary or other circumstances which would warrant such an assessment.

Id. at 353. Despite our use of “bad faith and wrongdoing,” we relied on and agreed with Cohen v. Schwartz, 538 So.2d 922 (Fla. 3d DCA 1989), in which the court suggested that in trying to close a prolonged estate, the trial court could assess attorney’s fees against a beneficiary’s portion of the estate for frivolous litigation consistent with section 733.106(4). We agree that if the litigation pursued is frivolous, then the court would have the authority under that section to assess fees against a specific beneficiary’s portion of the estate.

The trial court found that the fees incurred in pursuing the fees on fees litigation constituted essentially frivolous litigation and were unreasonably incurred. Therefore, it acted within its discretion to apportion the fees for that litigation to Geary. However, the court did not make a finding that the personal representative engaged in frivolous litigation in its initial defense to Butzel Long’s motion for fees and seeking disgorgement of fees paid. To the contrary, it noted that that defense may have been justified. It found only that the fees on fees litigation, which pushed the fees and costs awarded to Butzel Long from $19,000 to $49,000 (and subsequently even more), was unreasonable and unnecessary. Therefore, while the court could properly assess the fees on fees litigation against Geary, it should not have imposed the initial $19,000 for the fees litigation on Geary’s share of the estate without a finding of wrongful conduct, bad faith, or frivolousness.

Lesson learned? Think 57.105 motion.

First, if you look over the Florida Bar Journal articles explaining F.S. § 57.105 you’ll see that the standard for determining what constitutes “frivolous” litigation in that context is identical to the frivolity standard applied under F.S. § 733.106(4) and F.S. § 733.6175(2).

Second, a probate judge can’t shift fees for frivolous litigation unless its order contains specific findings of fact establishing “wrongful conduct, bad faith, or frivolousness.” Again, this “specific findings” requirement is identical to that required under F.S. § 57.105.

Bottom line, given that there are very few appellate-court decisions discussing when and how to apply F.S. § 733.106(4) and F.S. § 733.6175(2) to curb wrongful conduct, bad faith, or frivolousness in the probate-litigation context, looking to cases discussing F.S. § 57.105 makes sense; also, “framing” the issue for your probate judge as being analogous to a “57.105 motion” is probably the best short-hand way of making clear to your judge exactly what kind of remedy you’re looking for and why. Your judge may not be all that familiar with the ins and outs of fee-shifting under F.S. § 733.106(4) and F.S. § 733.6175(2), but he or she will almost certainly know exactly what you’re talking about the moment you say, “judge, this is like a 57.105 motion.”