Estate of Brock

695 So. 2d 714, 1996 WL 419325
CourtDistrict Court of Appeal of Florida
DecidedJuly 29, 1996
Docket95-1505
StatusPublished
Cited by9 cases

This text of 695 So. 2d 714 (Estate of Brock) 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
Estate of Brock, 695 So. 2d 714, 1996 WL 419325 (Fla. Ct. App. 1996).

Opinion

695 So.2d 714 (1996)

ESTATE OF Conway BROCK, deceased.
Conway BROCK, Jr., Appellant,
v.
Newman D. BROCK, Appellee.

No. 95-1505.

District Court of Appeal of Florida, First District.

July 29, 1996.

*715 Robert W. Goldman of Robert W. Goldman, P.A., Naples, for Appellant.

*716 James P. Judkins of Kitchen, Judkins, Simpson & High, Tallahassee, for Appellee.

JOANOS, Judge.

For the third time, we are called upon to review matters relating to the probate of the estate of Dr. Conway Brock. See Brock v. Brock, 667 So.2d 310 (Fla. 1st DCA 1995); Brock v. Brock, No. 95-94, 1996 WL 362918 (Fla. 1st DCA July 2, 1996). In this case, appellant seeks review of orders assessing costs and authorizing compensation of professionals for work performed in connection with probate of the estate. The issues presented are whether the probate judge erred in (1) assessing costs against appellant without notice and a hearing, (2) authorizing compensation of professionals without findings and with allegedly insufficient evidence, and (3) denying appellant's motion for a continuance. We affirm in part and reverse in part.

The costs at issue in this case arose in the context of a will challenge. Appellant, the decedent's older son and the will contestant, had been named alternate personal representative and co-beneficiary of the residuary estate in an earlier will, but was not a beneficiary under the will admitted to probate. After the judge denied appellant's motion for revocation of probate,[1] appellee, Dr. Brock's younger son and personal representative of the estate, filed a motion to tax costs against appellant in accordance with an itemized list attached to the motion. On February 21, 1995, the probate judge issued an order granting, among other things, appellee's motion to tax costs, and further granting appellant fifteen days to file written objections to any specific costs requested by the personal representative. On March 6, 1995, appellant filed a motion for rehearing of the costs order and general objections to costs, raising as grounds therefor that (1) the original petition filed by appellee did not request costs from appellant; (2) the ruling on costs was premature since the litigation had not concluded at that point; and (3) the order assessing costs did not specify whether costs were awarded under section 733.106 or Chapter 57 of the Florida Statutes.

The motion to tax costs again was considered briefly on March 28, 1995, during a telephone hearing on the personal representative's motion for leave to compensate professionals. At that time, appellant argued that an evidentiary hearing was required for a determination of the costs issue. The probate judge disagreed, expressing the view that appellant would be unable to present anything different from the evidence already considered by the court during trial of the motion to revoke probate. Thereafter, the probate judge issued an order taxing appellant with all costs claimed by the personal representative, with the exception of a claim for photocopy expense in the amount of $22.25.

Appellant asserts the rule on attorney's fees pronounced in Stockman v. Downs, 573 So.2d 835 (Fla.1991), should be construed as applying equally to cost awards. The Stockman opinion addressed decisions of the supreme court and of the district courts of appeal which held that while it was unnecessary to plead a claim for attorney's fees based on statute, an attorney's fee claim based on contract must be pled. 573 So.2d at 836. In response to a certified question, the supreme court held in Stockman that "[a] party seeking attorney's fees pursuant to statute or contract must plead entitlement to such fees." 573 So.2d at 838. Appellant has failed to provide either statutory or case law holding that costs may not be awarded in probate litigation unless pled, and our independent research has not disclosed authority for this proposition.

Generally, costs are considered an incident to the action and need not be claimed in the pleadings. The well settled "rule in chancery cases is that a court of equity may, as justice requires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party." Dayton v. Conger, 448 So.2d 609, 612 (Fla. 3d DCA 1984), citing Akins v. Bethea, 160 Fla. 99, 33 So.2d 638, 640 (1948). In Burnett v. Burnett, 197 So.2d 854, 857 (Fla. 1st DCA *717 1967), this court observed that the preferred procedure for the orderly taxation of costs would include service of the motion to tax costs, together with supporting statements and affidavits. The court noted that service upon the opposing party should be made "a reasonable time before the court enters the final judgment or decree, so that there will be sufficient time for the latter party to file any objections he may have to all or any part of such itemization and for the court to hear and adjudicate such items by the time it enters the final judgment or decree." See also Sullivan v. Musella, 526 So.2d 719, 721 (Fla. 2d DCA), review denied, 534 So.2d 401 (Fla.1988).

It appears the taxation of costs in this case was in substantial compliance with the procedure recommended by this court in Burnett. The motion to tax costs included a statement setting forth the items and amounts claimed as taxable costs. In the order granting the motion to tax costs against appellant, the probate judge also granted appellant a fifteen-day period within which to file written objections to specific items of costs claimed. Thus, the motion and the attachment itemizing costs furnished appellant with notice of the costs claimed, and the specific grant of permission to file objections carried with it the implication of further proceedings, if such proved warranted by appellant's objections.

The record indicates that the costs claimed were incurred in the course of the will challenge. Although appellant objected to the motion to tax costs in its entirety, he did not avail himself of the opportunity to file objections to specific items of costs claimed by the personal representative. The court's determination that costs should follow the results of the suit was within the equitable power of the probate judge, and we affirm the order taxing appellant with the costs incurred in his unsuccessful action to revoke probate. See Akins v. Bethea, 33 So.2d at 640; Dayton v. Conger, 448 So.2d at 612.

We reach a different conclusion with respect to the order approving compensation of professionals. First, we reject appellee's suggestion that appellant lacks standing to contest the order. When the order was entered, appellant was an "interested person" within the meaning of sections 731.201(21) and 733.109, Florida Statutes (1993). As such, he had standing to contest the charge against the estate for compensation of professionals.

The parties rely on different sections of the probate code to support their respective positions concerning compensation of the attorneys and the accountant involved in the probate of Dr. Brock's estate. Appellant's argument is predicated upon section 733.106(3), Florida Statutes (1993), which provides:

(3) Any attorney who has rendered services to an estate may apply for an order awarding attorney fees, and after informal notice to the personal representative and all persons bearing the impact of the payment the court shall enter its order on the petition.

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Bluebook (online)
695 So. 2d 714, 1996 WL 419325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-brock-fladistctapp-1996.