Law Offices of Robin Bresky Obtains Affirmance of Probate Court Rulings*

Michele Feinzig

by Michele Feinzig, Esq.

The Law Offices of Robin Bresky recently prevailed in a hotly contested probate appeal. The Firm’s client – a well-respected real estate and probate attorney, and Personal Representative of an Ancillary Florida Estate established to administer the Decedent’s Florida real property – received an affirmance of several rulings in an appeal brought by two of the Decedent’s heirs.

The underlying estate proceeding was originally filed in Georgia to probate the Decedent’s will.  The heirs disputed which of two Wills signed by the Decedent should be probated, and took their dispute all the way to the Supreme Court of Georgia, which determined that the Georgia Superior Court had properly granted specific enforcement of the Decedent’s contract with her deceased husband not to revoke their original 1980 Joint and Mutual Will, which specifically provided that the residue of the surviving decedent’s (the Decedent here) estate was to be divided equally among their four children.  This meant that a later 2005 Will executed by the Decedent alone, which left nothing to three of the Decedent’s four children, would not be enforced.

In order to administer the Decedent’s Florida real property, a Petition for Administration of that property was filed by our client in the Volusia County Probate Court.  The Florida Petition alleged that our client was the attorney for the Ancillary Estate, having been retained by the Personal Representative of the Estate in Georgia (also an attorney) to handle administration of the Estate in Florida.  Our client’s Florida Petition asked the Florida probate court to: (1) honor the Georgia courts’ findings, (2) admit the appropriate Will to probate, (3) recognize the beneficiaries under the 1980 Will, and (4) appoint our client as Ancillary Personal Representative of the Florida Estate. Our client also filed a Petition to cancel and void deeds improperly conveying the Decedent’s Florida real property, so as to return that property to the Decedent’s Florida Estate.

The probate court appointed our client Ancillary Personal Representative of the Decedent’s Florida estate, but two of the heirs filed an Objection, and a Petition to themselves be appointed to administer the Florida Estate. As part of their Petition, the two heirs claimed that one of them had a “lien” against the Florida real property for caregiver services allegedly provided to the Decedent before her death.

Numerous documents were then filed by the two heirs in the Florida probate proceedings, including a Petition to Remove our client as Ancillary Personal Representative and a Petition demanding payment of the one heir’s claim.  The two heirs’ filings unjustly accused our client of wrongdoing, including breach of fiduciary duty and failure to follow the law – all in an effort to have the Estate’s Florida assets distributed to the two of them directly, instead of being transferred to the Georgia Estate for distribution to allof the Decedent’s heirs.

Our client moved to strike the Petition demanding payment of the one heir’s claim, arguing, among other things, that the claim was untimely under Florida law.  Our client also filed a Petition for Personal Representative’s Commission and a Petition for Attorney’s Fee.  A hearing was held, and the probate court entered three orders: (1) an order striking the one heir’s demand for payment of her claim, (2) an order allowing our client a Personal Representative’s commission, and (3) and an order allowing our client an attorney’s fee.  The two heirs then filed an appeal pro seto the Fifth District Court of Appeal, appealing the above three orders and raising a total of ten issues on appeal, with multiple sub-issues.

Attorney Michele K. Feinzig, Of Counsel to The Law Offices of Robin Bresky, filed an extensive Answer Brief, which meticulously laid out relevant aspects of the record and demonstrated that none of the issues raised by the two heirs had any merit.  The Answer Brief further pointed out that:  the two heirs had made vague and conclusory arguments that were insufficient to warrant relief; the vast majority of those arguments were not preserved for appeal; other arguments were incorrect under the law; and the two heirs improperly sought review of filings that were never ruled on, or asserted failure of the probate court to “adjudicate” filings that were never set for hearing.

Importantly, the Answer Brief explained that the only orders properly appealed (the orders striking one heir’s claim against the Estate, awarding our client a Personal Representative’s commission, and awarding our client an attorney’s fee) were proper and well within the probate court’s discretion.  In particular, the order striking the claim against the Estate was entirely proper because the claim was time-barred under Florida law, as an estate is not liable for claims asserted more than two years after the decedent’s death.  Additionally, the orders awarding a Personal Representative’s commission and attorney’s fee were well within the probate court’s discretion, as the two heirs brought forth no evidence supporting their accusations contesting those awards and failed to provide a transcript from the hearing, and because the awards were supported by the record and the law.

In addition to filing an Answer Brief responding to the two heirs’ numerous arguments, the Firm filed a motion for appellate attorneys’ fees as a sanction against the two heirs pursuant to section 57.105, Florida Statutes, given the appeal’s complete failure to raise any justiciable appellate issue. Fees are only rarely awarded under section 57.105, and only rarely is a motion for section 57.105 fees appropriate. After careful consideration, Attorney Feinzig believed it was warranted here, and our client felt strongly that the Estate should recover its appellate attorneys’ fees incurred in having to respond to a frivolous appeal, in order to maximize the Estate’s value for the benefit of allof the Estate’s heirs.

The appellate court agreed with our Answer Brief, and issued a Per Curiam Affirmance, affirming all of the probate court’s rulings.  In addition, the appellate court agreed with our section 57.105 motion and awarded our client entitlement to appellate attorneys’ fees under section 57.105, remanding to the trial court to determine the amount. With our client’s actions fully vindicated, he looks forward to obtaining full recovery for the Estate of all of the appellate attorneys’ fees it had to incur in defending this non-meritorious appeal, as well as completing his obligations as Ancillary Personal Representative in the probate court.

* Not final until the Mandate issues.