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Cook v. Estate of Silverio11/19/2003
Eldalee Cook and Theodore Cook ("the Cooks") appeal from an Order on Personal Representative's Motion to Assess Attorney's Fees and Other Sanctions in which the trial court awarded attorney fees, pursuant to Section 57.105, Florida Statutes (2002), to the Personal Representative of the Estate of Gloria M. Silverio. We reverse.
On December 7, 1999, an automobile operated by Gloria Silverio collided with an automobile operated by Eldalee Cook. Mrs. Silverio died at the scene, and Cook sustained serious injuries. On January 31, 2000, Nicholas Silverio, as Personal Representative of his wife's Estate, filed a wrongful death action against the Cooks. In his Complaint, Silverio alleged damages for loss of consortium, the Estate's loss of earnings and prospective net accumulations, and medical and funeral expenses. The Cooks counterclaimed for Mrs. Cook's personal injuries and for Mr. Cook's loss of consortium. During the pendency of that action, Silverio, individually, and as Personal Representative, filed a separate action against the insurer of the automobile driven by his late wife for uninsured motorist benefits. Silverio settled that action for the sum of $100,000.00, retained 100% of the proceeds in his individual capacity, and did not deposit any portion into the account for the Estate. According to the settlement draft, the payee was listed as "Nicholas Silverio, individually, and as Personal Representative of the Estate of Gloria Silverio."
Later, the Cooks moved the probate court to compel Silverio to post a bond, to compel production of the original inventory of Estate assets, and to establish an independent depository for potential Estate assets pending the resolution of their claim against the Estate. After a hearing, the probate court required Silverio to supply the Cooks with an accurate inventory of the estate, and ordered him to deposit the settlement proceeds into a restricted depository.
On July 18, 2001, Silverio filed a Verified Petition to Confirm Settlement, asserting that the Estate was not entitled to the settlement proceeds because Mrs. Silverio was not employed, and there were no wage loss claims, net accumulations, or a funeral bill that would be a charge to the Estate as a result of the December 7, 1999 accident. The Cooks responded to the Petition, denying that the Estate had no interest in the settlement proceeds, and referencing the Estate's lawsuit against them. At the hearing on the Petition, Silverio proffered the testimony of an expert witness who would testify that the Estate did not suffer damages in the automobile accident, and therefore did not have a valid claim to the settlement proceeds. In response, the Cooks contended that while they had no testimony to rebut Silverio's allegations, Silverio, in lawsuits against the Cooks and Silverio's insurer, claimed damages on behalf of the Estate. The Cooks did not raise an additional objection to Silverio's proposed apportionment of the settlement proceeds. On November 14, 2001, the probate court granted the Petition to Confirm Settlement.
In April 2002, Silverio's automobile insurer settled the Cooks' counterclaim under its policy. As part of that settlement, Silverio dismissed his claims against the Cooks, and the Cooks dismissed their claims against Silverio and the Estate.
On July 25, 2002, Silverio filed a Motion to Assess Attorney's Fees and Other Sanctions against the Cooks and their attorney as a result of the Cooks' failure to assert a meritorious defense at the hearing on the Petition to Confirm Settlement. The trial court granted the Motion, finding that Silverio was "entitled to recover reasonable attorney fees and costs from [the Cooks and their attorney] for the
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