IN RE ESTATE OF PHILLIP D. O'CONNELL, DECEASED. BOOSE, CASEY, CIKLIN, LUBITZ, MARTENS, MCBANE & O'CONNELL, APPELLANT,
v.
F. TED BROWN, JR., AS SUCCESSOR TRUSTEE OF THE PERRY-BELLE O'CONNELL TRUST AND PHILIP D. O'CONNELL FAMILY TRUST, AND PHIL D. O'CONNELL, JR., AS PERSONAL REPRESENTATIVE, APPELLEES
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The court held that costs must be awarded upon dismissal under Rule 1.420(d), but attorney's fees are not automatically included unless a statute provides for them as costs.
Boose, Casey appealed a judgment awarding attorney's fees but denying costs. The underlying actions were voluntarily dismissed by Brown.…
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POLEN, J.
Boose, Casey, Ciklin, Lubitz, Martens, McBane & O’Connell (Boose, Casey) appeals a final judgment awarding the firm attorney’s fees of $4,000 pursuant to section 57.105 from F. Ted Brown, Jr., as trustee of the Phillip D. O’Connell family trust and denying additional claims for attorney’s fees and costs. We affirm the final judgment in all respects except as to the trial court’s denial of Boose, Casey’s claim for costs under Florida Rule of Civil Procedure 1.420(d).
Rule 1.420(d) requires that “[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.” Fla. R. Civ. P. 1.420(d); Century Constr. Corp. v. Koss, 559 So. 2d 611, 612 (Fla.1990). Under rule 1.420(d), the trial court was required to assess costs in favor of Boose, Casey based on Brown’s Voluntary dismissals of his actions against the firm.
Boose, Casey also argues it was entitled to an award of attorney’s fees because rule 1.420(d) allows an award of fees when a statute provides assessment of fees as proper costs. As to this latter point, the statutory authority to which Boose, Casey points, section 733.6171, does not apply to this case. Bitterman v. Bitterman, 714 So. 2d 356, 23 Fla. L. Weekly S168 (Fla.1998). Thus, Boose, Casey was not entitled to attorney’s fees under rule 1.420(d).
STEVENSON, J., and BROWN, LUCY C., Associate Judge, concur.
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Rennick v. Wilmington Sav. Fund Soc'y, FSB (Fla. 4th DCA 2021)…s. See Fla. R. Civ. P. 1.420(d) (providing that costs in any dismissed action “shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs”); see In re Estate of O’Connell, 725 So. 2d 385, 385 (Fla. 4th DCA 1998) (concluding trial court was required to assess costs in favor of defendant based on dismissal of action against them under rule 1.420(d)); see Glass, 219 So. 3d at 897 (denying borrower’s motion for appellate attorney’s fees…
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Rennick v. Wilmington Sav. Fund Soc'y, FSB (Fla. 4th DCA 2019)…s. See Fla. R. Civ. P. 1.420(d) (providing that costs in any dismissed action “shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs”); see In re Estate of O’Connell, 725 So. 2d 385, 385 (Fla. 4th DCA 1998) (concluding trial court was required to assess costs in favor of defendant based on dismissal of action against them under rule 1.420(d)); see Glass, 219 So. 3d at 897 (denying borrower’s motion for appellate attorney’s fees…
Authorities Cited
- Bitterman v. Anette Bitterman, 714 So. 2d 356 (Fla. 1998)
- Century Constr. Corp. v. Koss, 559 So. 2d 611 (Fla. 1st DCA 1990)