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Moore v. Estate of Albee

Florida Court of Appeals, Fifth District

February 23, 2018

CHARLES T. MOORE, ESQ., Appellant,
v.
ESTATE OF FLAIRE MAE ALBEE, BY MARY BENZENHAFER, PENNY A. COFFEY, LISA HOGAN, CHRISTINA FOX, JEFFREY LINDWAY, AND MICHAEL FARRAR, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Volusia County, Christopher A. France, Judge.

          Charles T. Moore, Port Orange, pro se.

          Michael Farrar, Aventura, pro se.

          No Appearance for other Appellees.

          LAMBERT, J.

         Charles Moore appeals the trial court's order denying his motion for attorney's fees under section 57.105, Florida Statutes (2013). Moore argues that the court erred because it applied an incorrect standard in evaluating and, thereafter, denying his motion.

         Although Moore is correct, we nevertheless affirm because, as we explain below, the trial court reached the right result, albeit for the wrong reason.

         Moore is an attorney who represented the heirs of the Estate of Fred Albee. At the time of his death, Fred Albee ("Fred") was married to Flaire Mae Albee ("Flaire Mae"). Fred died testate, but his will made no mention of his wife. Instead, Fred's will devised his estate to his prior wife, Maxine Kennedy ("Maxine"), to whom he was married at the time that he executed his will. The will provided that if Maxine should predecease Fred, then his estate was to be distributed to his daughter and grandchildren ("the Albee Heirs"). Fred and Maxine divorced in 1992. Fred died in December 1994, and Maxine died the following year.

         In July 2010, Moore, on behalf of the Albee Heirs, petitioned for the summary administration of Fred's estate, which the probate court granted. By this time, Flaire Mae had also died. Flaire Mae's estate, believing that it was entitled to one-half of the assets of Fred's estate by virtue of Flaire Mae being Fred's pretermitted spouse, [1] sought to reopen the summary administration proceedings. After being unsuccessful in that endeavor, Flaire Mae's estate separately brought a civil action in circuit court against the Albee Heirs and attorney Moore to essentially recover one-half of Fred's estate. Moore moved to dismiss this complaint based on the defense of res judicata, arguing that Flaire Mae's estate's claim, if any, in Fred's estate had been determined adversely to Flaire Mae in a separate proceeding. The trial court denied the motion in an unelaborated order.

         Pertinent to the present appeal, in September 2013, Moore and the Albee Heirs filed a one-sentence motion for attorney's fees under section 57.105, Florida Statutes, against the personal representative of Flaire Mae's estate and her counsel, Michael Farrar, asserting that they "knew or reasonably should have known that this action is barred by res judicata and collateral estoppel." Approximately two years later, the Albee Heirs and Moore moved for a final summary judgment, raising substantive grounds that are not pertinent to the instant appeal as to why Flaire Mae's estate was not entitled to Flaire Mae's pretermitted spousal share in Fred's estate. The Albee Heirs and Moore also asserted in their motion that the action filed against them by Flaire Mae's estate was barred by collateral estoppel and res judicata. The trial court granted final summary judgment in favor of the Albee Heirs and Moore on the substantive grounds argued and made no mention in the final judgment regarding the collateral estoppel or res judicata defenses raised. On Flaire Mae's estate's appeal and the Albee Heirs' and Moore's cross-appeal, this court affirmed the final summary judgment without opinion. Estate of Albee v. Coffey, 222 So.3d 1228 (Fla. 5th DCA 2017).

         After the mandate issued on the appeal, the trial court held a hearing on the aforementioned section 57.105 motion for attorney's fees. In denying the motion, the court concluded in its order that it "cannot find the matters presented by the [Flaire Mae Estate] were so devoid of a justiciable issue of either fact or law to be completely untenable." This appeal followed.

         "A trial court's order denying a request for attorney's fees pursuant to section 57.105 is reviewed for an abuse of discretion." Infiniti Emp't Sols., Inc. v. MS Liquidators of Ariz., LLC, 204 So.3d 550, 553 (Fla. 5th DCA 2016) (citing Ferere v. Shure, 65 So.3d 1141, 1144 (Fla. 4th DCA 2011)). "'However, to the extent a trial court's order on attorney's fees is based on its interpretation of the law, ' ...


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