Essenson v. Bloom (In re Bloom)

251 So. 3d 1026
CourtDistrict Court of Appeal of Florida
DecidedJuly 27, 2018
DocketCase No. 2D16-4994
StatusPublished
Cited by1 cases

This text of 251 So. 3d 1026 (Essenson v. Bloom (In re Bloom)) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Essenson v. Bloom (In re Bloom), 251 So. 3d 1026 (Fla. Ct. App. 2018).

Opinion

ROTHSTEIN-YOUAKIM, Judge.

In this certiorari proceeding, Attorney James L. Essenson seeks review of a trial court order granting Dorothy B. Bloom's (Dorothy) motion to compel production of Essenson's billing records in connection with his representation of Marshall Bloom *1028(Marshall) in the underlying proceeding relating to the guardianship, estate, and trust of Leon Bloom (Leon).1 This court stayed this certiorari proceeding pending the outcome of a related appeal, and Essenson has filed a notice of voluntary dismissal because his petition has become moot in light of subsequent proceedings on remand from that appeal. Before this court stayed the proceeding, however, Dorothy had filed a "motion for attorney's fees and costs on appeal." Consequently, along with his notice of voluntary dismissal, Essenson has also filed a "motion to preclude costs on appeal.

We accept Essenson's notice of voluntary dismissal, dismiss Essenson's petition, and deny Dorothy's motion for appellate attorney's fees without further comment, but we explain why, pursuant to Florida Rule of Appellate Procedure 9.400(a), we strike Dorothy's motion for appellate costs and grant Essenson's motion to preclude the trial court from taxing appellate costs in favor of Dorothy.

Background

This court's opinion in In re Guardianship of Bloom, 227 So.3d 165 (Fla. 2d DCA 2017), details the procedural history of Marshall's and Dorothy's involvement in Leon's guardianship and trust proceedings and, following Leon's death, his probate proceedings. During the pendency of Dorothy's claim for reimbursement from Leon's trust for funds she allegedly had used to care for Leon, Marshall successfully removed the successor trustee of Leon's trust. Based on the successful removal, Marshall sought an award of attorney's fees and asserted three bases for relief. The trial court denied the fee motion but in doing so only addressed two of Marshall's three bases for relief. Marshall's appeal of the order denying fees was the subject of Bloom, 227 So.3d 165.

While that appeal was pending, Dorothy moved to compel Essenson to produce billing records that she claimed were relevant to Marshall's previously denied request for attorney's fees. Essenson objected, arguing, in part, that his billing records were not relevant because the court had denied Marshall's fee motion. He acknowledged, however, that they would become relevant if Marshall's appeal were successful and if the trial court were to determine on remand that he was entitled to fees. Essenson represented that were that to happen, then he would produce the requested billing records without objection. Nonetheless, the court granted Dorothy's motion to compel and ordered Essenson to produce his billing records, as redacted for attorney-client and work-product privileges. Essenson timely sought certiorari review.

In his petition, Essenson contends that the trial court departed from the essential requirements of law by compelling production of billing records that were not relevant to anything in the proceeding in light of that court's determination that Marshall was not entitled to an award of attorney's fees. Essenson acknowledged, however, that if this court reversed the trial court's determination on entitlement and if the trial court ultimately determined that Marshall was entitled to fees, this certiorari proceeding would become moot, and he again represented that, in such a case, he would willingly produce the records that Dorothy had requested. Accordingly, this court stayed this certiorari proceeding pending the outcome of Marshall's appeal of the order denying entitlement to fees.

Thereafter, in Bloom, 227 So.3d at 170, this court remanded for the trial court to consider Marshall's previously overlooked *1029third basis for fees, and we continued the stay of this certiorari proceeding. On remand, the trial court determined that Marshall was entitled to attorney's fees.

As promised, Essenson acknowledges that his billing records are now relevant, and he has filed a notice of voluntary dismissal of his certiorari petition as moot. But pursuant to rule 9.400(a), he also moves for this court to preclude the trial court from awarding Dorothy costs related to the certiorari proceeding. Dorothy opposes the motion.

Discussion

Essenson argues that we should preclude the trial court from granting Dorothy her costs in this proceeding because the mootness of his petition did not resolve whether the trial court had departed from the essential requirements of law in compelling the production of documents that, at the time that it ordered the production, were irrelevant in light of that court's prior determination that Marshall was not entitled to attorney's fees. Acknowledging that appellate costs are to be awarded to the party prevailing in the proceeding in this court, Essenson argues that the only reason Dorothy prevailed in this court is because this court stayed his certiorari proceeding and allowed his petition to become moot.

Generally, if a party to an appeal2 files a motion in this court for an award of costs on appeal, this court will strike the motion because such costs are properly sought in the first instance in the trial court. See Superior Prot., Inc. v. Martinez, 930 So.2d 859, 860 (Fla. 2d DCA 2006) (" 'Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.' Thus, the motion for appellate costs cannot be filed in the district court but must be filed in the lower tribunal after jurisdiction has been returned to that body by our mandate." (quoting Fla. R. App. P. 9.400(a) (2006) ) ). The trial court determines who prevailed on appeal-as opposed to who prevailed in the underlying litigation-and then awards appellate costs upon proof by the prevailing party. See Fla. Power & Light Co. v. Polackwich, 705 So.2d 23, 25 (Fla. 2d DCA 1997) ("[T]he trial court must determine which party prevailed on the significant issues on appeal, not at trial."). Although "[a] trial court's decision on issues involved in a motion to tax appellate costs is largely discretionary," id. (citing Gen. Capital Corp. v. Tel Serv. Co., 239 So.2d 134 (Fla. 2d DCA 1970) ), it must tax those costs in favor of the prevailing party upon a timely motion "unless the [district] court orders otherwise," Fla. R. App. P. 9.400(a). See also Perez v. Fay, 198 So.3d 681, 683 (Fla.

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Bluebook (online)
251 So. 3d 1026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/essenson-v-bloom-in-re-bloom-fladistctapp-2018.