LUCILLE FERGUSON, APPELLANT,
v.
ESTATE OF COURTLAND D. FERGUSON, APPELLEE
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Ferguson appealed an estate matter raising testamentary capacity as a sole issue, but that issue was never presented to the trial court or contested at trial. The appellate court affirmed the trial court's judgment and granted the estate's motion to tax appellate attorneys' fees under Florida Statute 57.105, finding the appeal frivolous.
The appeal was frivolous because it raised testamentary capacity as a sole issue when that matter was never included in the pleadings or presented as a contested issue at trial. The court granted the motion to tax attorneys' fees and remanded for the trial court to determine the appropriate amount of fees attributable to the appeal.
[1] A complete absence of a justiciable issue of law or fact raised on appeal constitutes a frivolous appeal for the purposes of awarding attorney's fees.
[2] Section 57.105, Florida Statutes, authorizes the award of attorney's fees to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation.
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Join FLexlaw to unlock all legal intelligence“The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney's fee awards on losing parties who engage in these activities.”
Establishes the statutory purpose for awarding attorneys' fees in frivolous appeals
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Join FLexlaw to unlock all legal intelligenceThis was a probate matter involving an estate. Ferguson appealed raising testamentary capacity as the sole issue. However, testamentary capacity was n…
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PER CURIAM.
This matter has been considered on motion to tax attorneys’ fees by appellee pursuant to Section 57.105, Florida Statutes (1980). The motion to tax attorneys’ fees is granted and the matter remanded to the trial court for determination as to the amount. After a thorough review of the briefs, the record on appeal, and the motions and arguments regarding attorneys’ fees, we conclude that this appeal presents a situation within the statute in that there is a complete absence of a justiciable issue of law or fact raised by appellant. This has been held to be the equivalent of frivolousness. See: Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980); rev. denied, 392 So. 2d 1373 (Fla.1980); T.
I. E. Communications v. Toyota Motors, 391 So. 2d 697 (Fla. 3d DCA 1981); Sachs v. Hoglund, 397 So. 2d 447 (Fla. 3d DCA 1981); and Galbraith v. Inglese, 402 So. 2d 574 (Fla. 4th DCA 1981).
The sole issue raised on appeal in this probate matter was testamentary capacity. This issue was simply not included in the pleadings before the trial court or presented as a contested issue in the trial. Our Supreme Court has recently affirmed the constitutionality of the attorneys’ fee statute in question, and we believe the present situation is within the guidelines set in that decision. See Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla.1982).
The Court there stated: “The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fee awards on losing parties who engage in these activities.” (Emphasis supplied). This matter is remanded to the trial court. for determination of the amount of fees attributable to the appeal and for entry of judgment thereon.
DOWNEY, BERANEK and HURLEY, JJ., concur.
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Citator
Cited By
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Khoury v. Est. OF Rose K. Kashey, 533 So. 2d 908 (Fla. 3d DCA 1988)…Bashure v. Estate of Paulk, 498 So. 2d 525 (Fla. 1st DCA 1986); Anderson v. Anderson, 468 So. 2d 528 (Fla. 3d DCA), rev. denied, 476 So. 2d 672 (Fla. 1985); Goldwom v. Estate of Day, 452 So. 2d 659 (Fla. 3d DCA 1984); Ferguson v. Estate of Ferguson, 410 So. 2d 617 (Fla. 4th DCA 1982); Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA), rev. denied, 392 So. 2d 1373 (Fla.1980).…
Authorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Carola D. Allen v. Est. of Ellen C. Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980)
- T.I.E. Commc'ns, Inc. v. Toyota Motors Ctr., Inc., 391 So. 2d 697 (Fla. 3d DCA 1980)
- Galbraith v. Inglese, 402 So. 2d 574 (Fla. 4th DCA 1981)
- Sachs v. Hoglund, 397 So. 2d 447 (Fla. 3d DCA 1981)