              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                        IN THE DISTRICT COURT OF APPEAL
                                        OF FLORIDA
                                        SECOND DISTRICT

MARIE CASEY; BRIAN P. BATTAGLIA, )
ESQUIRE; BATTAGLIA, ROSS,        )
DICUS & McQUAID, P.A.; ALAN M.   )
GROSS, ESQUIRE; and ALAN M.      )
GROSS, P.A.,                     )
                                 )
           Appellants/           )
           Cross-Appellees,      )
                                 )
v.                               )               Case No.   2D14-3491
                                 )
PEGGY ANN JENSEN,                )
                                 )
           Appellee/             )
           Cross-Appellant,      )
                                 )
and                              )
                                 )
MARTHA BOMBARDI,                 )
                                 )
           Appellee.             )
________________________________ )

Opinion filed March 23, 2016.

Appeal from the Circuit Court for
Pinellas County; Lauren C. Laughlin,
Judge.

Timothy W. Weber and Joseph P.
Kenny of Weber, Crabb & Wein, P.A.,
St. Petersburg, for Appellants/Cross-
Appellees.

Joseph W. Fleece, Clearwater, for
Appellee/Cross-Appellant Peggy Ann
Jensen.
Robert Persante, Zackary T.
Zuroweste, and Darren M. Stotts of
The Persante Law Group, P.A.,
Clearwater, for Appellee Martha
Bombardi.



KELLY, Judge.


                This appeal arises from a final judgment awarding attorney's fees against

appellant Marie Casey and her attorneys following her unsuccessful attempt to

reestablish a lost will purportedly executed by her late husband. Casey's petition

survived a motion for summary judgment and a motion for involuntary dismissal during

trial; however, at the conclusion of the trial the court was not persuaded by her evidence

and it denied her petition. Appellees, Peggy Ann Jensen and Martha Bombardi, who

had opposed the petition, then sought fees pursuant to section 57.105, Florida Statutes

(2010). Finding Casey's claim without adequate factual support, the trial court granted

Bombardi's motion for section 57.105 fees. The trial court denied Jensen's motion for

section 57.105 fees on procedural grounds, a ruling Jensen has challenged in her

cross-appeal.

                On appeal, Casey challenges the award of section 57.105 fees to

Bombardi on substantive and procedural grounds. We conclude the trial court erred

when it found Casey's petition was without adequate factual support and accordingly

reverse. In light of this, we do not address Casey's argument that Bombardi's motion

was procedurally defective. As to the cross-appeal, we conclude that even if the trial

court had erred in finding that Jensen's motion was procedurally deficient, a matter we




                                            -2-
do not reach, any error was harmless because Jensen's motion, like Bombardi's, was

based on section 57.105 and an award pursuant to that statute would have been

erroneous.

              To succeed on her petition, Casey needed to establish her late husband,

Daniel Casey, in fact executed a will.1 At the outset of the litigation, Casey relied on the

affidavits of Glenn Brown, the attorney who had prepared a will for her late husband in

1988. In the affidavits, Brown stated that Daniel had executed the will in early 1989

before a notary and two witnesses. He also swore it was his routine practice to keep

the original will in his office but he could not locate it because he had retired in 2005 and

his files had been destroyed.

              Brown was later deposed and his deposition, which was read at trial,

confirmed the accuracy of the affidavits except to say that he kept conformed copies of

wills, not originals. Brown testified that he specifically recalled preparing the will, but he

did not have a specific independent recollection of seeing Daniel sign it in front of him,

although he believed Daniel came to his office to sign the will in early 1989:

                  Q: Do you have any doubt that in early 1989 Daniel Casey
                  came into your office, in your presence, your secretary’s
                  presence, in the presence of at least one (1) other person,
                  and—when he executed the will in your office?

                  A: That’s a difficult question to answer. I think what I was
                  trying to say earlier was that my recollection was that Dan
                  came in and signed it. That was my recollection. And did
                  I—do I specifically recall sitting down watching him sign it?
                  No. I, I believe—now that’s just a belief and it’s certainly
                  not proof beyond a reasonable doubt—but I, I believe, or I
                  wouldn’t have signed this [affidavit], that Dan came in and—


              1
               We recognize Casey had other hurdles to overcome in order to prevail,
but the absence of proof of execution was the specific failing the appellees raised in
support of their motion for section 57.105 attorney's fees.


                                              -3-
               ****
               I believe—now, that’s just my belief—I believe that Dan
               came in and signed this Will. And the reason I believe that
               is that he was, he was concerned about getting it done,
               so—and we went into a lot of detail on this. And I knew the
               history of his brother and what he had done, you know as
               far as writing "Grease." But I have no mathematic—I
               wouldn’t say with mathematical certainty.

This passage was the basis for the appellees' contention that they were entitled to fees

under section 57.105.

              Section 57.105(1), Florida Statutes (2010), provides:

              Upon the court’s initiative or motion of any party, the court
              shall award a reasonable attorney’s fee, including
              prejudgment interest, to be paid to the prevailing party in
              equal amounts by the losing party and the losing party’s
              attorney on any claim or defense at any time during a civil
              proceeding or action in which the court finds that the losing
              party or the losing party’s attorney knew or should have
              known that a claim or defense when initially presented to the
              court or at any time before trial:

              (a) Was not supported by the material facts necessary to
              establish the claim or defense; or

              (b) Would not be supported by the application of then-
              existing law to those material facts.


Section 57.105 requires a court to award a reasonable attorney's fee when it finds the

losing party or the losing party's attorney knew or should have known that a claim was

not supported by the material facts necessary to establish it. Id. "A claim is 'supported

by the material facts' within the meaning of the statute when 'the party possesses

admissible evidence sufficient to establish the fact if accepted by the finder of fact.' "

Siegel v. Rowe, 71 So. 3d 205, 211 (Fla. 2d DCA 2011) (quoting Albritton v. Ferrera,

913 So. 2d 5, 8 n.1 (Fla. 1st DCA 2005)).



                                             -4-
              We conclude that under the circumstances of this case, the trial court

abused its discretion in awarding fees against Casey and her attorneys. As in Siegel,

we need look no further than the trial court's own comments to support our conclusion.

See id. at 212.

              In denying the motion for involuntary dismissal during the trial, the court

 stated:

                  Obviously the appellate court[s] are loathe to approve grant
                  [sic] of involuntary dismissals. They tend to side on having
                  the cases tried on their merits.

                  In this case, although the evidence on one side is certainly
                  thin, I’m going to deny the motion for involuntary dismissal
                  and allow all of the evidence to be considered in this case.

                  Not being allowed to determine weight, and I have some
                  concerns about the Kero[2] case, but I have not in my own
                  mind made up my mind what that means, what that case
                  means.

In its ruling on the motion for attorney's fees, the trial court stated:

                  In the instant case the petitioner’s attorneys may have
                  reasonably believed that their claim had merit when it was
                  filed, based upon Mr. Brown’s affidavits. The court
                  observes that Mr. Brown’s later deposition revealed it had
                  no merit. The court notes that the tentative nature of his
                  deposition testimony differed greatly from the emphatic
                  nature of his statements in both affidavits. Since he did not
                  testify at trial, his deposition testimony offered at trial was
                  his last statement on the signing of the will.

                   ****
                  Instead of acknowledging the absence of any competent
                  evidence of execution, the petitioners continued to maintain

              2
                 In re Estate of Kero, 591 So. 2d 675 (Fla. 4th DCA 1992), was cited to
the trial court by Casey for the proposition that an unsigned copy of the original will is
sufficient to constitute a correct copy for the purposed of establishing the contents of a
lost will and that the testimony of the drafting attorney was sufficient to establish a lost
will.


                                               -5-
               in their arguments and pleadings that the will had been
               executed. To establish a lost or destroyed will so as to
               entitle it to probate, there must first be sufficient evidence of
               its due execution and, prior existence. As stated in the
               probate rules: "In all proceedings contesting the validity of
               a will, the burden shall be upon the proponent of the will to
               establish prima facie its formal execution and attestation."
               Fla. Prob. R. 5.275. Prima facie evidence is evidence
               sufficient to establish a fact unless and until rebutted. State
               v. Kahler, 232 So. 2d 166, Fla. 1970 [sic]. The evidence
               must be competent and substantial. In order to be
               competent and substantial, the evidence must be credible;
               the memories of the witnesses must be clear and
               unconfused; the facts must be distinctly remembered and
               the testimony must be precise and explicit. In Re Davey,
               645 So. 2d 398 (Fla. 1994). The testimony of Mr. Brown did
               not approach a competent and substantial standard.


              Initially, we note that the trial court evaluated whether Casey presented

competent, substantial evidence using the standard for determining whether evidence is

clear and convincing. Section 57.105(1) only requires that a claim be supported by

"material facts," which we have described as facts sufficient to establish a fact if

accepted. See Siegel, 71 So. 3d at 211. The trial court's pronouncement also reflects it

had ultimately rejected Brown's testimony because he seemed tentative in comparison

to his earlier affidavits. In other words, Casey presented evidence in the form of

Brown's recollection, and the trial court weighed it and ultimately rejected it. This is also

reflected in the trial court's order rejecting Casey's petition where it references Brown's

lack of "conviction" that the will was ever signed.

              While the facts in this case are not as clear-cut as those in Siegel, we

nevertheless find that as in that case, the record here cannot support a conclusion that

Casey had no evidence to support her claim. Rather, she presented evidence that if

accepted would have established that Daniel had executed the will. Finally, we cannot



                                            -6-
ignore the fact that the trial court denied both a summary judgment motion and a motion

for involuntary dismissal at trial. We cannot reconcile the trial court's finding that Casey

and her attorneys should have known her claim was without factual support with the fact

that the trial court found her claim sufficient to survive both motions. For all these

reasons, we conclude the trial court abused its discretion when it awarded section

57.105 fees against Casey.

              Because of our resolution of this issue, it is unnecessary to reach the

procedural issues raised in the appeal and the cross-appeal. Our conclusion that

Casey's claim did not meet the standard for imposing fees under section 57.105

necessarily requires that we reject Jensen's alternative argument on cross-appeal that

the trial court should have exercised its inherent authority to sanction a party for bad

faith litigation. Accordingly, we affirm the denial of attorney's fees to Jensen and

reverse the portion of the final judgment that awards attorney's fees in favor of

Bombardi.

              Affirmed in part; reversed in part.




VILLANTI, C.J., and LUCAS, J., Concur.




                                            -7-
