Becky J. Kersey, Individually and as Trustee of the Mary Jo C. Abraham Living Trust Dated April 18, 2007 v. Kenneth J. Abraham

• Court: District Court of Appeal of Florida
• Decided: April 17, 2025
• Docket: 6D2023-1927
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2023-1927 Lower Tribunal No. 2019-CP-000178TR _____________________________

BECKY J. KERSEY, individually and as Trustee of the MARY JO C. ABRAHAM LIVING TRUST DATED APRIL 18, 2007,

Appellant,

v.

KENNETH J. ABRAHAM, Appellee. _____________________________

Appeal from the Circuit Court for Osceola County. Margaret H. Schreiber, Judge.

April 17, 2025

PER CURIAM.

Appellant, Becky Kersey (“Appellant”), appeals a final order of the trial court

awarding Appellee, Kenneth Abraham (“Appellee”), attorney’s fees in a case in

which the trial court found that Appellant breached her fiduciary duty as a trustee in

administering her mother’s living trust. We affirm the final judgment without

discussion. We write, however, to address Appellee’s motion for appellate

attorney’s fees. Appellee’s motion seeks an award of appellate attorney’s fees pursuant to

Section 736.1005, Florida Statutes. We agree with the Fourth District, however, that

we do not have jurisdiction to award appellate attorney’s fees from a trust under

Section 736.1005. See Bronstein v. Bronstein, 332 So. 3d 510, 513-14 (Fla. 4th DCA

2021) (citing Garvey v. Garvey, 219 So. 2d 685 (Fla. 1969)). The court below has

exclusive jurisdiction pursuant to the statute to award attorney’s fees from the trust.

Accordingly, Appellee’s motion for attorney’s fees is denied without prejudice to

Appellee seeking attorney’s fees for this appeal in the lower court.

AFFIRMED.

SMITH, MIZE and GANNAM, JJ., concur.

Eric S. Mashburn, of Law Office of Eric S. Mashburn, P.A., Winter Garden, for Appellant.

Beverly A. Pohl, of Nelson Mullins Riley & Scarborough LLP, Fort Lauderdale, and Regia Rabitaille, Todd K. Norman, and Olivia R. Share, of Nelson Mullins Riley & Scarborough LLP, Orlando, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED