Shuck v. Smalls, — So.3d —-, 2012 WL 6027820 (Fla. 4th DCA December 05, 2012)
In civil litigation you usually have years to file your complaint: most statute of limitations periods fall within the 2-6 year range. Not surprisingly, most civil litigators assume the same rules apply to probate litigation. Big mistake! For example, under F.S. 733.212(3) you’ve only got 3 months to file a will contest after you’ve been formally served with the petition for administration. This ultra-short limitations period is a huge trap for the unwary and – not surprisingly – a recurring topic on this blog [click here, here].
Can the 5-day mail rule buy you more time to file your will contest? NO
When you miss a filing deadline by just a few days, the 5-day grace period for mailed service under Probate Rule 5.042(b) can be a life saver. Not so for will contests. Why? Because the 5-day mail rule doesn’t apply to pleadings and motions served by formal notice. In this case the petition for administration was served by certified mail on the will challengers. This counts as formal notice. Bottom line: no 5-day grace period. So saith the 4th DCA:
In this case, appellants’ petition challenging the will and the qualifications of the personal representative were untimely under section 733.212(3), Florida Statutes. On February 10, 2006, counsel for Smalls served the Notice of Administration by certified mail on appellants Charles Shuck, Carol Shuck, and Sandra Walker. Charles and Carol Shuck received the Notice of Administration on February 13, 2006, and Sandra Walker received it on February 14, 2006. However, appellants’ petition was not filed until May 19, 2006, which was over three months after the Notice of Administration.
Appellants suggest that their petition was timely because Florida Probate Rule 5.042 (2006) provided for an additional five-day grace period because service was achieved by mail. This argument is without merit. The relevant version of rule 5.042(d) provides:
(d) Additional Time After Service by Mail. Except when serving formal notice, or when serving a motion, pleading, or other paper in the manner provided for service of formal notice, when an interested person has the right or is required to act within a prescribed period after the service of notice or other paper on the interested person and the notice or paper is served by mail, 5 days shall be added to the prescribed period.
Fla. Prob. R. 5.042(d) (2006) (emphasis added).
Here, the Notice of Administration was served on appellants by formal notice. Because appellants received formal notice, the five-day grace period provided by rule 5.042 was inapplicable and the three-month limitations period expired before the petition was filed.
Can filing a time-barred will contest get you (and your lawyer) sanctioned under 57.105? YES
In this case the parties challenging the will somehow managed to convince the trial judge to give them a pass on their time-barred will contest; the trial court denied a motion to dismiss. At the time, this probably felt like a big win. Not so in retrospect. According to the 4th DCA, just because you managed to pull a fast one on your trial judge at the beginning of the case doesn’t mean you get a free pass from then on.
Because the petition was clearly time-barred, we agree with appellees’ argument on cross-appeal that the trial court abused its discretion in failing to award section 57.105 attorney’s fees from the inception of the case. Cf. Zweibach v. Gordimer, 884 So.2d 244 (Fla. 2d DCA 2004) (a time-barred claim may expose a party to an award of fees under section 57.105). Even though appellants were able to persuade the trial court to deny the motion to dismiss, this does not change the fact that their claims were clearly time-barred and were objectively frivolous at the inception of the case. That appellants were able to convince the trial court to make a legally incorrect ruling on the motion to dismiss should not shield them from liability under section 57.105.
Also, because the case was time barred, the attorneys should have known better . . . which means they’re personally on the hook for 50% of the $441,500 in attorney’s fees, plus cost and expert witness fees ultimately awarded against their clients. Here’s why:
Finally, we note that section 57.105(1), Florida Statutes (2007), shifts attorney’s fees and costs to “a losing party and the losing party’s attorney” in equal amounts when the court finds that a claim or defense was not supported by the material facts necessary to establish it, or that it would not be supported by applying then-existing law to those material facts. However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. Id. “Fees must be assessed against counsel as provided by statute unless the attorney can show good faith. This places the burden where it should be.” Horticultural Enters. v. Plantas Decorativas, LTDA, 623 So.2d 821, 822 (Fla. 5th DCA 1993).
In this case, the fees awarded under section 57.105 presumptively should have been awarded against both appellants and their counsel. Furthermore, because appellants’ claims were time-barred, this precludes appellants’ attorneys, as a matter of law, from asserting any good faith reliance upon the representations of their clients.
Does a sanctions order under F.S. 57.105 = a fee-shifting order under F.S. 733.106(4)? YES
Under F.S. 733.106(4) a probate judge can shift the cost of litigating frivolous probate claims against the losing side’s share of the inheritance by directing “from what part of the estate they shall be paid.” As I wrote here, according to the 4th DCA “this section does not give the trial court unbridled discretion to award fees from any part of the estate,” so it’s reversible error to shift legal fees under F.S. 733.106(4) in the absence of a finding of “bad faith, wrongdoing, or frivolousness.”
In this case the losing side tried to get the fee-shifing order under F.S. 733.106(4) reversed because the judge didn’t make a specific finding of “bad faith, wrongdoing, or frivolousness.” True enough, said the 4th DCA, but this kind of finding is basically implied any time a judge sanctions you under F.S. 57.105. So if you’re already getting sanctioned under that statute, the specific findings needed for a fee-shifting order under F.S. 733.106(4) are satisfied by default. Bottom line: if you’re getting nailed with a 57.105 sanction in a probate case, expect to also get it under 733.106(4). Here’s why:
Section 733.106(4), Florida Statutes (2007), provides that “[w]hen 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.” In In re Estate of Lane, 562 So.2d 352, 353 (Fla. 4th DCA 1990), however, we limited a trial court’s discretion under section 733.106(4) to circumstances in which the will contestant engaged in “bad faith or wrongdoing.” FN3 More recently, we reaffirmed the bad faith requirement pronounced in Lane, but clarified that frivolous litigation would support an assessment of fees under section 733.106(4). See Geary v. Butzel Long, P.C., 13 So.3d 149, 153 (Fla. 4th DCA 2009).
Appellants contend that the trial court should not have awarded fees against only their share of the estate under section 733.106(4), because the trial court did not make any specific finding that appellants’ claims were frivolous or filed in bad faith. However, because we have concluded that appellants’ claims were frivolous from their inception, this is sufficient to satisfy the “bad faith or wrongdoing” requirement of Lane. See Geary, 13 So.3d at 153. Thus, the trial court did not abuse its discretion in assessing fees against appellants’ share of the estate under section 733.106(4).
FN3. Although the Florida Supreme Court did not specifically mention a “bad faith” requirement when it discussed section 733.106(4) in Carman v. Gilbert, 641 So.2d 1323, 1326 (Fla.1994), we do not read Carman as explicitly or implicitly overruling Lane. The issue of whether Lane correctly interpreted section 733.106(4) was not before the court in Carman.