No Attorney’s Fees Based on Inequitable Conduct Doctrine In Florida Will Contest Without Due Process Of Law

In Voyles v. Glavin, a March 4, 2022 opinion, the Florida Fifth District Court of Appeal reversed a judgment awarding over $200,000 in attorney’s fees under the inequitable conduct doctrine.  This case is a stark reminder to always state your grounds for attorney’s fees, and always provide your opponent notice and an opportunity to be heard.

The Facts Of Voyles v. Glavin

Attorney Glavin prepared Bobbye Kreisberg’s 2014 will and trust.  The will and trust benefitted several charities and left nothing to Bobbye’s brother, Richard Baxter.  Attorney Glavin was nominated as the personal representative and trustee.

Baxter filed a will contest, claiming that his sister lacked testamentary capacity and that Glavin employed undue influence.

After a few hearings, some written discovery, and one deposition, Glavin succeeded in having the will provisionally admitted to probate, subject to a trial on testamentary capacity and undue influence.  Shortly before trial, Baxter withdrew all of his objections.

Nearly a month after Baxter withdrew his objections, Glavin filed a motion to tax fees and costs against Baxter. Glavin’s motion stated it was made “pursuant to principles of equity applicable to chancery actions,” and cited to sections 57.041, 57.105, 733.106, 733.609, Florida Statutes (2020), and Florida Rules of Civil Procedure 1.420 and 1.525 as authority. There was no mention in the motion of “sanctions,” “the inequitable conduct doctrine,” “bad faith,” or anything remotely similar to any of those terms.

About a week before the hearing on Glavin’s motion to tax fees and costs, she filed 180 pages of supporting documents, none of which mentioned sanctions, inequitable conduct, bad faith, or anything similar.

On the day of the hearing, Glavin filed a notice of additional authorities in support of her motion to tax fees and costs against Baxter, and for the first time referenced the inequitable conduct doctrine.

After a hearing where only Glavin testified, the Florida probate court signed Glavin’s proposed judgment.  The inequitable conduct doctrine was the sole basis relied upon by the probate court for sanctioning Baxter with attorneys’ fees and costs totaling $220,042.82. The probate court’s final judgment did not mention any of the statutes or rules Glavin relied upon in her motion to tax attorneys’ fees. Despite well-settled law that requires orders awarding attorney’s fees to set forth explicit findings as to the number of hours reasonably expended and the reasonable hourly rate for the type of litigation involved, the final judgment made no such findings.

Baxter appealed the judgment of attorney’s fees awarding fees based on the inequitable conduct doctrine.

What Is Florida’s Inequitable Conduct Doctrine?

Under Florida law, “[t]he inequitable conduct doctrine permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.” Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998). “[T]his doctrine is rarely applicable. It is reserved for those extreme cases where a party acts ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’” Id. (internal citations omitted).

Does a Florida Trial Court Have Jurisdiction To Award Attorney’s Fees After a Voluntary Dismissal?

Yes, a trial court has authority to award attorney’s fees after a voluntary dismissal, but such authority is limited:

A voluntary dismissal divests a trial court of jurisdiction when it immediately ends the litigation. See Dep’t of Rev. o/b/o Venzen, 294 So. 3d 3 See, e.g., Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985); Bishop v. Est. of Rossi, 114 So. 3d 235, 237 (Fla. 5th DCA 2013); Simhoni v. Chambliss, 843 So. 2d 1036, 1037 (Fla. 4th DCA 2003). 7 at 446; Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986) (“A trial judge is deprived of jurisdiction, not by the manner in which the proceeding is terminated, but by the sheer finality of the act, whether judgment, decree, order or stipulation, which concludes litigation.”). After the entry of a voluntary dismissal, a trial court’s authority to award attorney’s fees even under the inequitable conduct doctrine is limited. See Almazan v. Est. of Aguilera-Valdez, 273 So. 3d 9, 11 (Fla. 4th DCA 2019) (“[W]e hold that a trial court’s inherent authority to award attorney’s fees as a sanction for bad faith conduct on its own initiative does not extend beyond a voluntary dismissal.”); see also Pomeranz & Landsman Corp. v. Mia. Marlins Baseball Club, L.P., 143 So. 3d 1182, 1183 (Fla. 4th DCA 2014) (noting that a trial court has jurisdiction to consider 57.105 motion for sanctions “only where the motion for sanctions was filed with the court before a voluntary dismissal”).

Here, Baxter voluntarily dismissed the Florida will contest on July 29, 2020, when he withdrew all his objections to probate of the 2014 will and appointment of Glavin as personal representative.  On August 4, 2020, letters of administration were issued, and Glavin was appointed personal representative of the estate which led to normal estate administration. Glavin’s motion to tax attorneys’ fees and costs was not filed until August 28, 2020.

The Florida appellate court determined under this timeline and the posture of this case that the Florida probate court lacked jurisdiction to entertain and rule on Glavin’s motion for attorney’s fees and costs.

Inequitable Conduct Attorney’s Fees Cannot Be Awarded Without Due Process

A Florida trial court’s inherent authority to impose attorney’s fees as a sanction for bad faith or inequitable conduct is subject to due process requirements—namely notice and an opportunity to be heard, which includes the opportunity to present witnesses and other evidence.

Here, the final judgment awarding attorney’s fees did not mention any of the statutes or rules relied upon in Glavin’s motion.  Glavin’s motion to tax fees and costs against Baxter did not mention sanctions, bad faith, inequitable conduct, or anything remotely related to those terms.   The court determined:

We hold that providing notice mere hours before a hearing that Glavin might seek attorneys’ fees on some basis not identified in her motion, i.e., as sanctions under the inequitable conduct doctrine, does not comport with due process. Accordingly, we quash the final judgment, remand for entry of an order denying Glavin’s motion to tax attorneys’ fees and costs with prejudice, and for such other proceedings consistent with this opinion as may be appropriate to afford relief to Baxter.

As set forth in the Court’s opinion, an award of fees based on the Florida inequitable conduct doctrine is an extraordinary occurrence, and is not appropriate without notice and an opportunity to be heard.

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