BETTY B. O'BRIEN AND JAMES L. ESSENSON, ESQ., APPELLANTS,
v.
ROBERT E. SARKA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court erred in awarding attorney's fees under section 57.105 because the appellant's intervention motion, while invalid, was not so devoid of merit as to be completely untenable.
Betty O'Brien sought to intervene in an action filed by a guardian against an estate. O'Brien, a beneficiary, objected to the guardian's claim and que…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Justiciable Issue cases and more on FLexlaw
FRANK, Judge.
Betty O’Brien and her attorney have appealed from the trial court’s award of attorneys’ fees imposed pursuant to section 57.105, Florida Statutes. O’Brien had moved to intervene in an independent action filed by Sarka, the guardian of the deceased, against Thomas, the personal representative of the estate. Sarka was attempting to collect guardianship fees and he had submitted a statement of claim against the estate to which O’Brien, in her capacity as beneficiary of the estate, objected. O'Brien’s objection prompted Sarka to file the independent action. O’Brien petitioned to intervene, her motion was granted, and then Sarka moved for judgment on the pleadings. Sarka prevailed, and the court awarded him fees under section 57.-105.
To grant fees under section 57.-105, the court must find a complete absence of a justiciable issue of law and fact to have been raised by the losing party. As we stated in Rojas v. Drake, 569 So. 2d 859, 860 (Fla. 2d DCA 1990).
[T]he requirement of frivolousness for an award of attorney’s fees is not equivalent to the standard required to prevail on a summary judgment, judgment on the pleadings, or even a motion to dismiss for failure to state a cause of action. Rather, an award of attorney’s fees under section 57.105 is only proper where the action is so clearly devoid of merit both on the facts and the law as to be completely untenable.
O’Brien’s Motion for Intervention was not, at first blush, completely untenable. She asserted that she questioned the adequacy of representation of her interests by Oleta Thomas, the personal representative of the estate, because Sarka and Thomas were co-plaintiffs in other litigation against O’Brien. As a beneficiary, she was attempting to protect the assets of the estate. Although her intervention was invalid, the action was not so frivolous as to require that she and her attorney be punished for attempting it.
Reversed.
DANAHY, A.C.J., and LUTEN, CLAIRE K., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Branch v. State, 626 So. 2d 653 (Fla. 1993)…PER CURIAM. We review State v. Branch, 613 So. 2d 47 (Fla. 4th DCA 1991), in which the district court of appeal reversed a downward departure sentence on the authority of State v. Jenkins, 591 So. 2d 261 (Fla. 4th DCA 1991). Because Jenkins was pending in this Court, we accepted jurisdiction of the in…
-
McMONIGLE v. McMONIGLE, 932 So. 2d 369 (Fla. 2d DCA 2006)…g a total lack of justiciable issue of fact. Because we conclude there was a justicia-ble issue of fact, fees should not have been awarded under section 57.105. Furthermore, we find the facts of this case to be similar to those in O’Brien v. Sarka, 613 So. 2d 47 (Fla. 2d DCA 1993). In O’Brien, Sarka, who was serving as the guardian of the deceased at the time of the deceased’s death, filed an independent action against the estate to collect guardianship fees allegedly owed by the estate. O’Brien was a benef…
Authorities Cited
- Rojas v. Drake, 569 So. 2d 859 (Fla. 2d DCA 1990)