Betty O'Brien and her attorney have appealed from the trial court's award of attorneys' fees imposed pursuant to section 57.105, Florida Statutes. O'Brien had moved to intervene in an independent action filed by Sarka, the guardian of the deceased, against Thomas, the personal representative of the estate. Sarka was
To grant fees under section 57.105, the court must find a complete absence of a justiciable issue of law and fact to have been raised by the losing party. As we stated in Rojas v. Drake, 569 So.2d 859, 860 (Fla. 2d DCA 1990).
O'Brien's Motion for Intervention was not, at first blush, completely untenable. She asserted that she questioned the adequacy of representation of her interests by Oleta Thomas, the personal representative of the estate, because Sarka and Thomas were co-plaintiffs in other litigation against O'Brien. As a beneficiary, she was attempting to protect the assets of the estate. Although her intervention was invalid, the action was not so frivolous as to require that she and her attorney be punished for attempting it.
DANAHY, A.C.J., and LUTEN, CLAIRE K., Associate Judge, concur.