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4th DCA: Cost awards in probate litigation

By Juan C. Antúnez

 Nasser v. Nasser, --- So.2d ----, 2008 WL 239073 (Fla. 4th DCA Jan 30, 2008)

Fees and costs.  Attorneys say those words all the time, and we can all agree on what we mean by the word "fees," even when we don't agree on the amount of fees; what's usually much less clear is what mean by the word "costs" for purposes of a costs order.  Understanding the scope of the word "costs" is important because it enables parties to better weigh the pros/cons of seeking a costs order (i.e., will the expense of getting a costs order exceed the benefit) as well as assessing the economic risks when you're being threatened with a costs order.

The linked to case is useful on two fronts: (i) it gives probate counsel a ready resource for anticipating which expenses are likely to be included within a costs order; and (ii) it explains the proponent's burden of proof when seeking costs.  In this case the personal representative appealed an order taxing costs that did not include deposition costs.  Here's how the 4th DCA addressed this point:

As to the award of costs, appellant contends that the trial court erred in failing to tax as costs the expense of two depositions. Pursuant to the recently revised Uniform Guidelines for Taxation of Costs, deposition expenditures are included in the category of items that should be taxed. In re Amendments to Unif. Guidelines for Taxation of Costs, 915 So.2d 612, 616 (Fla.2005). It is the moving party's burden to show that the requested costs were reasonably necessary to defend the case at the time the action precipitating the cost was taken. Id. During the hearing on the motion for attorney's fees and costs, it does not appear that there was ever any inquiry into whether the requested costs were reasonably necessary to defend the case at the time the action precipitating the cost was taken. As the appellant failed to meet her burden in the trial court to show that the requested costs were reasonably necessary, we must affirm the court's denial of these additional costs.

Full post as published by Florida Probate Litigation Blog on February 05, 2008 (boomark / email).