IN RE ESTATE OF SHARON LEE WILLIAMS. DONALD R. BROPHY, APPELLANT,
v.
GERALD L. CONDON, AS PERSONAL REPRESENTATIVE, APPELLEE
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Donald Brophy appealed an order requiring him to pay costs in his unsuccessful surcharge action against the personal representative of an estate. The appellate court reversed, finding that the trial court abused its discretion by awarding costs for items that are not properly taxable, including long-distance calls, photocopies, airline tickets, and an expert witness fee.
The trial court abused its discretion in awarding these costs. Long-distance calls are office expenses not taxable as costs; photocopies are taxable only if admitted into evidence or filed with the court; party travel costs are not covered by taxing guidelines; and expert witness fees for legal interpretation of Florida law are not properly taxable.
[1] Expenses such as postage, long-distance calls, and fax transmissions are generally considered office expenses and are not taxable costs.
[2] Photocopying costs may be awarded if the documents are admitted into evidence or filed with the court.
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Establishes the applicable legal standard: while probate courts have broad discretion on cost allocation, that discretion is limited to properly taxable costs.
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Join FLexlaw to unlock all legal intelligenceBrophy filed a surcharge action against Gerald Condon, the personal representative of the Estate of Sharon Lee Williams. The trial court found that Br…
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DAVIS, Judge.
Donald R. Brophy appeals the order requiring him to pay certain costs arising out of his unsuccessful surcharge action against Gerald L. Condon. We conclude that the trial court abused its discretion in ordering Brophy to pay these costs, and, accordingly, reverse.
Donald R. Brophy filed an action for surcharge against Gerald L. Condon, as personal representative of the Estate of Sharon Lee Williams. The trial court found that Brophy failed to establish the elements of a surcharge action and ruled in favor of the estate. The trial court ordered Brophy to pay certain costs, including the cost of certain photocopies and long-distance telephone calls, the cost of three airline tickets, and an expert witness fee.
Although the trial court in a probate proceeding has broad discretion to apportion taxable costs between the parties (see Dayton v. Conger, 448 So. 2d 609, 612 (Fla. 3d DCA 1984); § 733.106(1), Fla. Stat. (1997)), we conclude that the trial court abused its discretion here because it awarded costs for expenses that are not properly taxable as costs.
Condon sought reimbursement for numerous long-distance telephone calls that he made to his attorney and to the trial judge. First, the record is unclear whether these calls arose out of the instant litigation since Condon acknowledged that some of the calls may have included discussion of unrelated estate issues. Second, items such as postage, long-distance calls, and fax transmissions are generally considered to be office expenses that are not taxable. See Department of Transp. v. Skidmore, 720 So. 2d 1125 (Fla. 4th DCA 1998).
Condon also requested reimbursement for the cost of photocopying certain documents. The Statewide Uniform Guidelines for Taxation of Costs in Civil Actions suggest that a trial court may award photocopying costs if the documents are admitted into evidence or filed with the court. Because neither exception applies here, the trial court abused its discretion in awarding these costs.
Next, Condon sought reimbursement for the purchase price of three airline tickets to return to Florida for court proceedings. Condon’s affidavit indicates that he purchased one ticket for the purpose of attending a hearing on the issue of homestead, an unrelated hearing that occurred several months before trial in the instant litigation. In any event, the cost of a party’s appearance at a court proceeding is not covered by the guidelines, and, absent exceptional circumstances, should not be taxed as costs. See Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000).
Finally, the trial court also awarded the estate the cost of procuring an expert witness. The estate had called attorney William Belcher to testify as an expert in probate litigation and explain whether Brophy had properly pleaded a surcharge action for the alleged breach of fiduciary duty. However, opinion testimony as to the legal interpretation of Florida law is not a proper subject of expert testimony. See Lee County v. Barnett Banks, Inc., 711 So. 2d 34, 34 (Fla. 2d DCA 1997). Because the estate called Belcher only to offer his legal opinion, the trial court abused its discretion in awarding Belcher’s expert witness fee.
Having concluded that the trial court abused its discretion in awarding these costs to the estate, we reverse.
THREADGILL, A.C.J., and ALTENBERND, J., Concur.
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Morris v. Dollar Tree Store & Specialty Risk Servs., 869 So. 2d 704 (Fla. 1st DCA 2004)…arty. Under the Guidelines, mailing costs are considered office expenses and are not recoverable as taxable costs to the prevailing party. See, e.g., Seminole County v. Chandrinos, 816 So. 2d 1241, 1246 (Fla. 5th DCA 2002); In re Estate of Williams, 771 So. 2d 7, 8 (Fla. 2d DCA 2000); Dep’t of Transp. v. Skidmore, 720 So. 2d 1125, 1130 (Fla. 4th DCA 1998). We consider that the JCC’s reference to the Guidelines was misplaced. Although no provision under chapter 440 explicitly approves the taxing as costs of…
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Fla. Dep't OF Transp. v. Armadillo P'rs, Inc., 849 So. 2d 279 (Fla. 2003)…ir expertise. See Hall v. State, 568 So. 2d 882, 884 (Fla.1990). Other protections impact the content of the expert’s opinion and its underlying basis. Experts are not permitted to opine on questions of substantive law, see In re Estate of Williams, 771 So. 2d 7, 8 (Fla. 2d DCA 2000), and an expert’s opinion will be inadmissible if based on insufficient data. See Brito v. County of Palm Beach, 753 So. 2d 109, 114 (Fla. 4th DCA 1998). Another protection, firmly rooted in Florida jurisprudence prior to the C…
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Strickland v. Timco Aviation Servs., Inc., 66 So. 3d 1002 (Fla. 1st DCA 2011)…k under contract in this case. However, such testimony does not raise an issue of fact because the determination of the application of federal regulation is a legal question and not a proper matter for expert testimony. Cf. In re Estate of Williams, 771 So. 2d 7, 8 (Fla. 2d DCA 2000); Lee County v. Barnett Banks, Inc., 711 So. 2d 34, 34 (Fla. 2d DCA 1997); T.J.R. Holding Co. v. Alachua County, 617 So. 2d 798, 800 (Fla. 1st DCA 1993); Ownby v. Tennessee Farmers Coop. Corp., No. M2008-00878-COA-R3-CV, 2009 WL…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canty v. State, 448 So. 2d 609 (Fla. 3d DCA 1984)
- State v. Skidmore, 720 So. 2d 1125 (Fla. 4th DCA 1998)
- LEE Cnty. v. Barnett Banks, Inc., 711 So. 2d 34 (Fla. 2d DCA 1997)
- Helene K. Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000)