GAIL LEVIN, APPELLANT,
v.
WILLIAM LEVIN, INDIVIDUALLY, AND AS TRUSTEE OF THE SHIRLEY SUNSHINE LEVIN DECLARATION OF TRUST AGREEMENT DATED MAY 22, 2008, JESSICA LYNN LEVIN, AND BENJAMIN LEVIN, APPELLEES
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Florida appellate court reversed attorney's fees and costs awards against appellant's estate share because trial court failed to find bad faith, wrongdoing, or frivolousness before imposing fees, and costs award was premature pending determination of prevailing party status.
Attorney's fees cannot be assessed against an appellant's estate share without a trial court finding of bad faith, wrongdoing, or frivolousness.
[1] Attorney's fees may not be assessed against a party's estate share in probate proceedings without trial court findings of bad faith, wrongdoing, or frivolousness.
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Join FLexlaw to unlock all legal intelligenceAppellant Gail Levin appealed a judgment assessing attorney's fees against her share of an estate and an order taxing costs against her in a probate d…
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In this probate case, appellant appeals a judgment assessing attorney’s fees against her share of the estate as well as an order taxing costs against her. The trial court did not make the requisite finding of any bad faith, wrongdoing, or frivolousness before awarding fees against appellant’s share of the estate. See Geary v. Butzel Long, P.C., 13 So.3d 149 (Fla. 4th DCA 2009); In re Estate of Lane, 562 So.2d 352 (Fla. 4th DCA 1990). Accordingly, we reverse and remand for the trial court to determine, either from the record or after an evidentiary hearing, whether appellant engaged in any bad faith, wrongdoing, or frivolousness in the pursuit of her claim. The trial court should make this determination after deciding whether the will and trust were the product of an “insane delusion,” as we directed in the related case of Levin v. Levin, 60 So.3d 1116 (Fla. 4th DCA 2011). Although we find no abuse of discretion in the inclusion of the trial notebook and demonstrative aids in the calculation of costs, we nevertheless reverse the order taxing costs, as the award of costs is dependent upon who is ultimately the prevailing party.
Reversed and remanded for further proceedings.
CIKLIN, LEVINE, JJ., and THORNTON, JOHN W, JR., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- In re Est. OF Ruth Lane, 562 So. 2d 352 (Fla. 4th DCA 1990)
- Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011)
- Geary v. Butzel Long, P.C., 13 So. 3d 149 (Fla. 4th DCA 2009)