BY ORDER OF THE COURT:
The "Motion for Rehearing or in the alternative Motion for Clarification" filed by Appellees Alexander P. Alexander and Plato J. Alexander is denied in all respects. The "Motion for Clarification and/or Rehearing and for Written Opinion and Certification" filed by Appellant Eva Lana is granted to the extent that the prior opinion dated June 23, 2017, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.
VILLANTI, Judge.
In this probate proceeding, Eva Lana appeals the probate court's order awarding sanctions against her pursuant to section 57.105, Florida Statutes (2015), and two other judgments against her awarding expert witness fees to another party's attorney and to the curator of the estate. While Lana challenges the sanctions judgment on numerous grounds, we find merit only in her contention that judgment improperly includes an award of expert witness fees. We also find merit in her contention that the expert witness fees awarded to the personal representative's attorney, Hamden Baskin, and to the court-appointed curator of the estate, Gary Fernald, were awarded in violation of due process. We therefore reverse the sanctions judgment in part and the judgments in favor of Baskin and Fernald in total. In all other respects, we affirm.
While a recitation of the long, contentious, and convoluted history of this case is unnecessary to our resolution of this case, some background is necessary to understand our ruling. The death of Paula X. Assimakopoulos ignited numerous disputes between her two daughters, Lana and Nicolle Assimakopoulos-Panuthos, and their uncle and cousin, Alexander P. Alexander and Plato J. Alexander. The first dispute centered on where Assimakopoulos's estate would be probated. Ultimately, after some not insignificant wrangling, Lana agreed that the Florida courts had jurisdiction to probate the estate. Probate was opened in Pinellas County, Lana and Panuthos were appointed as co-personal representatives, and probate proceedings began. Later, after proceedings became bogged down due to disagreements between the co-personal representatives, Lana was removed as a co-personal representative, although she remained active in the case as a beneficiary.
As the family disputes continued three years after the estate was opened, Lana filed a petition to revoke probate, alleging that the documents initially used to establish Assimakopoulos's domicile in Florida were incomplete and falsely presented and that a full review of all of her documents and affairs would show that probate jurisdiction was properly in New York rather than Florida. In response to this petition, the Alexanders and Panuthos filed motions to dismiss, which were granted after an evidentiary hearing. Hence, the petition to revoke probate was denied.
Lana initially appealed the probate court's order denying her petition; however, shortly after the notice of appeal was
Shortly thereafter, the Alexanders filed a motion for sanctions in the probate court under section 57.105(1) based on Lana's filing of the above rule 1.540 motion, which they asserted was not supported by either the facts or the law, and they noticed their motion for hearing. In preparation for the hearing on this motion, Lana subpoenaed Baskin as the attorney for the personal representative, Fernald as the court-appointed curator of the estate, and her own former attorneys. In response to Lana's subpoena, Baskin filed a notice of intent to seek an expert witness fee, to which Lana objected. Baskin did not file a motion actually seeking a fee, and his "notice" was not set for hearing.
Despite having subpoenaed witnesses for the hearing on the Alexanders' sanctions motion, Lana did not appear for that hearing. However, since the hearing had been properly noticed, the probate court went forward, first taking testimony from George Felos, who was counsel for the Alexanders. The Alexanders also presented the testimony of expert fee witness Deborah Bushnell. When the Alexanders finished their presentation, the court asked Baskin whether he wanted to be heard. At that point, Baskin argued that he was entitled to an expert witness fee for his appearance that day, contending that the "only way" that he could have been subpoenaed was to present expert testimony on fees. The probate court then asked Fernald whether he had anything to add. Fernald then made an ore tenus "me too" motion for an award of an expert witness fee. The probate court subsequently granted the Alexanders' motion for sanctions, entered a sanctions judgment in their favor, and included an expert witness fee for Bushnell in that judgment. The probate court also entered separate judgments in favor of Baskin and Fernald for expert witness fees. Lana has appealed each of these judgments.
Lana argues first that the probate court's decision to include an expert witness fee for Bushnell in the sanctions judgment was improper because the plain language of section 57.105(1) does not authorize such an award. We agree.
Section 57.105(1) provides as follows:
As is clear from the plain language of the statute, the sanction permitted is an award of attorney's fees only. Costs are not included. This is in contrast to the plain language of section 57.105(2), which provides for a sanction of "damages," measured as the "reasonable expenses incurred in obtaining the order," when the court finds that an action taken by the opposing party was taken primarily for the purpose of unreasonable delay. Under subsection (2), costs could be included as part of damages; however, this language is absent from subsection (1), which provides only for an award of attorney's fees.
And indeed, several courts, including this one, have specifically held that an award of sanctions under section 57.105(1) may not include costs.
And, as Lana properly points out, expert witness fees are taxed as costs. Section 92.231(2), Florida Statutes (2015), provides, in pertinent part:
(Emphasis added.) Further, the Florida Supreme Court has specifically held that "expert witness fees ...
Here again, as noted above, section 57.105(1) provides only for an award of attorney's fees — not costs. Therefore, the sanctions judgment awarding attorney's fees
In defense of the trial court's award, the Alexanders point to several cases in which it appears that an award of costs was affirmed under section 57.105. However, several of the cases to which they point do not clearly hold that
Similarly, in
Likewise, in
Importantly, none of these nonbinding cases from our sister courts clearly award costs in violation of the plain language of section 57.105(1). Instead, it is unclear in each case whether the costs were imposed under section 57.105(1) or on some other basis. Therefore, we do not believe that our ruling conflicts with the actual result in any of those cases.
However, two cases cited by the Alexanders do contain language that appears to affirm an award of costs under section 57.105(1). In
Likewise, in
While we recognize the decisions in
Lana also argues that the probate court erred by awarding "expert witness fees" in separate judgments to both Baskin and Fernald in violation of due process. We agree and reverse both of these judgments for several reasons.
First, entry of these judgments violated due process because neither Lana nor anyone else was notified that these claims would be considered at the sanctions hearing. While it is true that Baskin filed a "notice of intent" to seek an expert witness fee under Florida Rule of Civil Procedure 1.390, that rule requires that all parties "be served with notice of any hearing to determine the fee." It is undisputed that there was never any notice that Baskin's fee "notice" would be considered at the hearing on the Alexanders' motion for sanctions. And when a court considers issues not noticed for hearing, the court denies the litigant due process, and any ensuing order or judgment must be reversed.
Likewise, the court's consideration of Fernald's ore tenus "me too" motion for an expert witness fee violates due process. Not only was such motion not noticed for hearing, but it had not even been made before the hearing. Entry of judgment on a motion never made, never served upon the opposing party, and never noticed for hearing patently violates due process.
Second, in addition to reversal on due process grounds, the judgments in favor of Baskin and Fernald must be reversed because rule 1.390 — under which Baskin explicitly and Fernald implicitly proceeded — does not authorize an award of fees under the circumstances presented here. Rule 1.390 is entitled "Depositions of Expert Witnesses," and it provides for a fee to an expert witness whose deposition is taken. Neither Baskin nor Fernald were deposed. Therefore, neither was entitled to an expert witness fee under this rule.
In this appeal, Baskin argues for the first time that his judgment should be affirmed because he was entitled to the fee under section 92.231, Florida Statutes (2015). Notably, this was not the basis asserted for the award in Baskin's "notice of intent" to seek a fee, nor was it argued at the hearing. Further, section 92.231(2) permits an award of an expert witness fee only to an expert who "shall have testified in any cause," and it is undisputed that neither Baskin nor Fernald testified at the sanctions hearing. Therefore, even if section 92.231(2) had been raised as a basis for the award in the probate court, the court could not have properly awarded expert witness fees on that basis since the statutory prerequisites were not met. For this reason as well, the expert witness fee judgments in favor of Baskin and Fernald must be reversed.
In sum, the probate court erred by including Bushnell's expert witness fees as part of the sanctions judgment entered in favor of the Alexanders under section 57.105(1). To the extent that the final judgment on sanctions in favor of the Alexanders includes this award, it is reversed. The probate court also erred by awarding expert witness fees to Baskin and Fernald in violation of due process and the rules of civil procedure and without any valid statutory basis for such an award. Therefore, we reverse the judgments in favor of Baskin and Fernald in their entirety. We also certify conflict with
SLEETand SALARIO, JJ., Concur.