Rebecca Geary, as Personal Representative of the Estate of Janice White, Appellant, v. Butzel Long, P.C., Jennifer Bova, Richard Geary, David Geary, and Peter Geary, Appellees.

Summary

In Geary v. Butzel Long, P.C., the Florida Fourth District Court of Appeal held that under section 733.6175(2), Florida Statutes, a probate court may assess attorney’s fees against a personal representative’s share of the estate not only for bad faith, but also where the litigation pursued is frivolous or unreasonable. The court affirmed the trial court’s apportionment of fees incurred in the “fees on fees” litigation as frivolous, but reversed the assessment of fees for the initial defense, which the trial court found may have been justified. The decision clarifies that before apportioning fees against a beneficiary or personal representative, there must be a finding of bad faith, wrongdoing, or frivolous litigation.

Holdings

1. A trial court may assess attorneys' fees against a personal representative personally if the litigation pursued is essentially frivolous, even without a finding of bad faith.
2. The trial court's finding that the fees on fees litigation was essentially frivolous and unreasonably incurred justified assessing those fees against Geary personally.
3. Without a finding of wrongful conduct, bad faith, or frivolousness as to the initial fee defense, the trial court could not assess those fees against Geary, and thus it erred.

Questions Presented

1. Whether the trial court must find bad faith before assessing attorney's fees against a personal representative's share of the estate under section 733.6175, Florida Statutes.
2. Whether the trial court erred in holding Geary personally responsible for the initial fee litigation fees (before the 'fees on fees' phase) absent a finding that the initial defense was frivolous or in bad faith.

Disposition

affirmed in part, reversed in part, and remanded