Lana v. Assimakopoulos-Panuthos
228 So. 3d 709
| Fla. Dist. Ct. App. | 2017Background
- Paula Assimakopoulos died; probate in Pinellas County led to disputes among her daughters (Lana and Nicolle) and relatives (the Alexanders).
- Lana was initially co-personal representative, later removed; she filed a petition to revoke probate (arguing New York domicile), which was denied after evidentiary hearings and a Rule 1.540 motion.
- The Alexanders moved for sanctions under section 57.105(1) based on Lana’s Rule 1.540 filing; a sanctions hearing was noticed and held but Lana did not attend.
- At the sanctions hearing the Alexanders presented attorney-fee evidence and an expert (Bushnell). Baskin (personal representative’s attorney) filed a “notice of intent” to seek expert witness fees (not set for hearing); Fernald (court-appointed curator) orally sought similar fees at the hearing.
- The probate court awarded sanctions under section 57.105(1) to the Alexanders (including Bushnell’s expert fee) and entered separate judgments awarding expert witness fees to Baskin and Fernald; Lana appealed.
Issues
| Issue | Lana's Argument | Alexanders/Baskin/Fernald's Argument | Held |
|---|---|---|---|
| Whether §57.105(1) authorizes expert witness fees (costs) as part of sanctions | §57.105(1) authorizes only attorney’s fees, not costs or expert fees | Prior cases and practice allow recovery of costs/expert fees post-sanctions | Court: §57.105(1) permits only attorney’s fees; expert witness fees are costs under §92.231 and cannot be awarded under §57.105(1); reverse that portion and certify conflict with cases to the contrary |
| Whether awarding expert fees to Baskin and Fernald violated due process | They lacked notice that those fee claims would be considered; Rule 1.390 notice was not provided | Baskin relied on his notice; Fernald made an ore tenus request at hearing | Court: Due process violated (no notice, not set for hearing); judgments for Baskin and Fernald reversed |
| Whether Rule 1.390 or §92.231 authorized Baskin/Fernald awards | Rule 1.390 applies only to expert depositions; §92.231 applies only where expert testified | Baskin (on appeal) argued §92.231 authorized his fee | Court: Rule 1.390 inapplicable (no depositions); §92.231 requires testimony — neither Baskin nor Fernald testified — so no statutory basis for awards; reversed |
| Other challenges to sanctions order | Lana raised multiple additional procedural and substantive claims | Alexanders defended sanctions generally | Court: All other challenges rejected; sanctions otherwise affirmed except for expert-fee/cost components |
Key Cases Cited
- Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985) (expert witness fees taxed as costs when lawyer testifies as fee expert)
- Heldt-Pope v. Thibault, 198 So. 3d 650 (Fla. 2d DCA 2015) (57.105(1) awards limited to attorney's fees; costs reversed)
- Siegel v. Rowe, 71 So. 3d 205 (Fla. 2d DCA 2011) (reversed cost award under §57.105(1) as unauthorized against attorneys)
- Jackmore v. Estate of Jackmore, 145 So. 3d 170 (Fla. 1st DCA 2014) (costs not authorized under §57.105(1))
- Martin County Conservation Alliance v. Martin County, 73 So. 3d 856 (Fla. 1st DCA 2011) (awarded fees and costs under §57.105(1); certified conflict)
- Smith v. Viragen, Inc., 902 So. 2d 187 (Fla. 3d DCA 2005) (affirmed award including costs purportedly under §57.105; court noted conflict)