       IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA


                                     October 20, 2017




In re Estate of Paula X. Assimakopoulos,      )
deceased; and In re Trust Administration      )
of the Paula X. Assimakopoulos Trust          )
U/T/A 4/15/2008.                              )
                                              )
                                              )
EVA LANA,                                     )
                                              )
              Appellant,                      )
                                              )
v.                                            )          Case No. 2D15-4205
                                              )
NICOLLE ASSIMAKOPOULOS-                       )
PANUTHOS, individually and as                 )
personal representative of the estate         )
and as cotrustee of the trust; GARY M.,       )
FERNALD, as curator of the estate;            )
ALEXANDER P. ALEXANDER; and                   )
PLATO J. ALEXANDER,                           )
                                              )
              Appellees.                      )
                                              )


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dated June 23, 2017, is withdrawn, and the attached opinion is issued in its place.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.



I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.




MARY ELIZABETH KUENZEL, CLERK
                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT




In re Estate of Paula X. Assimakopoulos,     )
deceased; and In re Trust Administration     )
of the Paula X. Assimakopoulos Trust         )
U/T/A 4/15/2008.                             )
                                             )
                                             )
EVA LANA,                                    )
                                             )
             Appellant,                      )
                                             )
v.                                           )   Case No.   2D15-4205
                                             )
NICOLLE ASSIMAKOPOULOS-                      )
PANUTHOS, individually and as                )
personal representative of the estate        )
and as cotrustee of the trust; GARY M.,      )
FERNALD, as curator of the estate;           )
ALEXANDER P. ALEXANDER; and                  )
PLATO J. ALEXANDER,                          )
                                             )
             Appellees.                      )
                                             )

Opinion filed October 20, 2017.

Appeal from the Circuit Court for Pinellas
County; Jack St. Arnold, Judge.

Dineen Pashoukos Wasylik of DPW
Legal, Tampa, for Appellant.

George J. Felos of Felos & Felos,
Dunedin, for Appellees Alexander P.
Alexander and Plato J. Alexander.
Jeffrey A. Eisel and Hamden H. Baskin,
III, of Baskin Fleece, Clearwater, for
Appellee Nicolle Assimakopoulos-
Panuthos.

No appearance for Gary M. Fernald.


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 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.

                                          Facts

              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



                                           -2-
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 filed in this court, Lana filed a motion

asking this court to relinquish jurisdiction so that the probate court could entertain a

motion to vacate the denial of the petition under Florida Rule of Civil Procedure 1.540.

This court granted that motion and relinquished jurisdiction. Lana then filed her rule

1.540 motion, and the probate court held an evidentiary hearing on it. At the conclusion

of the hearing, the probate court denied the motion.

              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




                                            -3-
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.1




              1In her appeal, Lana also challenged numerous other rulings of the trial
court related to the entry of the sanctions judgment against her. This court has carefully
considered all of those arguments, and we reject them without discussion.


                                           -4-
                  Award of Expert Witness Fees to the Alexanders

             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:

             Upon the court's initiative or motion of any party, the court
             shall award a reasonable attorney's fee, including
             prejudgment interest, to be paid to the prevailing party in
             equal amounts by the losing party and the losing party's
             attorney on any claim or defense at any time during a civil
             proceeding or action in which the court finds that the losing
             party or the losing party's attorney knew or should have
             known that a claim or defense when initially presented to the
             court or at any time before trial:

             (a) Was not supported by the material facts necessary to
             establish the claim or defense; or

             (b) Would not be supported by the application of then-
             existing law to those material facts.

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. See, e.g., Heldt-




                                           -5-
Pope v. Thibault, 198 So. 3d 650, 652 (Fla. 2d DCA 2015) (affirming award of attorney's

fees under section 57.105(1) but reversing the award of costs because "section

57.105(1) does not provide for the award of costs"); Siegel v. Rowe, 71 So. 3d 205, 210

n.2, 214 (Fla. 2d DCA 2011) (reversing cost award under section 57.105(1) against

attorneys as unauthorized but affirming it against the party under section 57.041(1));

Jackmore v. Estate of Jackmore, 145 So. 3d 170, 170 (Fla. 1st DCA 2014) (reversing

award of costs under section 57.105 because such an award "is not authorized");

Ferere v. Shure, 65 So. 3d 1141, 1145 (Fla. 4th DCA 2011) (stating that an award of

costs is not permitted under section 57.105(1)); Santini v. Cleveland Clinic Fla., 65 So.

3d 22, 36 (Fla. 4th DCA 2011) (same); Ferdie v. Isaacson, 8 So. 3d 1246, 1251 (Fla. 4th

DCA 2009) (same). Hence, to the extent that the sanctions judgment against Lana

includes an award of costs, it was patently improper.

              And, as Lana properly points out, expert witness fees are taxed as costs.

Section 92.231(2), Florida Statutes (2015), provides, in pertinent part:

              Any expert or skilled witness who shall have testified in any
              cause shall be allowed a witness fee including the cost of
              any exhibits used by such witness in an amount agreed to by
              the parties, and the same shall be taxed as costs.

(Emphasis added.) Further, the Florida Supreme Court has specifically held that

"expert witness fees . . . may be taxed as costs for a lawyer who testifies as an expert

as to reasonable attorney's fees." Travieso v. Travieso, 474 So. 2d 1184, 1186 (Fla.

1985) (second emphasis added). Hence, the fee charged by a lawyer to appear as an

expert witness is considered a cost, not an attorney's fee, and it is awardable only when

costs are properly awarded.




                                           -6-
             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 and costs to the Alexanders must be reversed to the extent that it purports to

award $27702 in expert witness fees to Bushnell because that award constitutes an

award of costs, which is impermissible under section 57.105(1).

             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 costs are recoverable

under section 57.105(1). For example, in Wells v. Halmac Development, Inc., 184 So.

3d 620, 622 (Fla. 3d DCA 2016), the issue on appeal was whether prejudgment interest

should have been awarded on the attorney's fee award—not whether costs were

properly awarded. While the attorney's fees had apparently been awarded under

section 57.105, the opinion notes that $1409.77 in costs and $7200 in expert witness

costs were also included in the judgment. Id. However, the discussion of the award

under section 57.105(1) does not mention the costs or expert witness fees, and the

party recovering the fees and costs was also the prevailing party in the appeal and so

would have been entitled to an award of costs under section 57.041(1). Id. at 622-23.




             2In  paragraph 7(d) of the sanctions judgment, the trial court found that
Bushnell had testified that her fee for services in this matter was $2700. However, in
paragraph 20 of the sanctions judgment, the trial court ordered that the Alexanders
were entitled to recover a "reasonable expert witness fee of $2,770." While the amount
in paragraph 20 is supported by Bushnell's testimony at the sanctions hearing, the
award of her expert witness fees—whether they be $2700 or $2770—is improper under
section 57.105(1). No expert witness fee for Bushnell in any amount should be included
in the corrected judgment entered on remand.


                                           -7-
Therefore, it is not clear that the Wells decision truly stands for the proposition that

costs are recoverable under section 57.105(1).

              Similarly, in Indemnity Insurance Co. of North America v. Chambers, 732

So. 2d 1141, 1142 (Fla. 4th DCA 1999), the trial court granted defendant Tetra Pak's

motion to dismiss and found that it was entitled to an award of "attorney's fees under

section 57.105(1)." The trial court also awarded Tetra Pak its expert witness fees, but

the basis for this award is not identified in the opinion. As in Wells, Tetra Pak was the

prevailing party and would have been entitled to an award of costs under section

57.041(1). Thus, the court's opinion does not clearly affirm an award of costs under

section 57.105(1).

              Likewise, in Walker v. Cash Register Auto Insurance of Leon County, Inc.,

946 So. 2d 66, 68-69 (Fla. 1st DCA 2006), the trial court awarded "costs and fees"

under section 42 U.S.C. § 1988 and also granted "57.105 fees." The issue on appeal

was whether the award was proper under section 57.105 when no twenty-one-day

notice was given. Id. at 69. The First District first discussed the "award of section

57.105 fees." Id. at 70. It found that the award under section 57.105 was supported by

the record, but the opinion did not specify whether it was an award of fees only or both

fees and costs. Id. In its conclusion, the court reversed the "award of attorney's fees

and costs under 42 U.S.C. § 1988" and affirmed "the award under section 57.105(1)."

Id. at 72. Hence, it is not entirely clear from the text of the opinion whether any award of

costs was actually made under 57.105(1).

              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




                                            -8-
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 Martin County

Conservation Alliance v. Martin County, 73 So. 3d 856 (Fla. 1st DCA 2011), the

appellate court dismissed an appeal and then, on its own initiative, awarded sanctions

under section 57.105(1). While the decision repeatedly states that Martin County is

entitled to recoup its attorneys' fees under section 57.105(1), see id. at 857, 858, at the

end of the opinion, the court awards both attorneys' fees and costs under the authority

of section 57.105(1), id. at 865. This award is at odds with the plain language of the

statute as well as the First District's subsequent decision in Jackmore.

              Likewise, in Smith v. Viragen, Inc., 902 So. 2d 187, 191 (Fla. 3d DCA

2005), the court affirmed an award of both attorney's fees and costs, noting that it need

not distinguish between the amounts awarded under section 895.01, Florida Statutes,

and section 57.105 "because the entire award could have been made pursuant to

section 57.105 alone." As in Martin County, the award of costs on this basis conflicts

with the plain language of section 57.105.

              While we recognize the decisions in Martin County and Viragen, neither of

these cases leads us to conclude that an award of costs is proper under section

57.105(1). Instead, we follow the plain language of section 57.105(1), as well as our

own prior binding decisions in Heldt-Pope and Siegel, and hold that the award of expert

witness fees as a cost under section 57.105(1) was improper. Accordingly, we reverse




                                             -9-
the sanctions judgment in favor of the Alexanders to the extent that it awards expert

witness fees as a cost.3 We also certify conflict with Martin County and Viragen on this

point.

                Award of Expert Witness Fees to Baskin and Fernald

              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



              3In their motion for rehearing, the Alexanders urge this court to affirm the
award of expert witness fees for Bushnell by applying the tipsy coachman doctrine to
find that they were the prevailing parties in the proceedings below and thus entitled to
an award of costs under section 57.041(1). However, the Alexanders never sought an
award of costs in the trial court under section 57.041(1), and the trial court made no
factual finding that the Alexanders were the prevailing parties in these proceedings.
Hence, the tipsy coachman doctrine is unavailable in this instance to affirm the award of
expert witness fees. See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (holding
that the tipsy coachman doctrine will permit the appellate court to affirm "if there is any
theory or principle of law in the record which would support the ruling" (quoting Dade
Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999))); see also
Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) ("[A]n appellate court
cannot employ the tipsy coachman rule where a lower court has not made factual
findings on an issue."); Bryant v. Fla. Parole Comm'n, 965 So. 2d 825, 825 (Fla. 1st
DCA 2007) (same).


                                           - 10 -
must be reversed. See, e.g., Barile v. Gayheart, 80 So. 3d 1085, 1087 (Fla. 2d DCA

2012); Minda v. Ponce, 918 So. 2d 417, 421-22 (Fla. 2d DCA 2006) (holding that due

process was violated when the court considered issues not noticed for hearing in

addition to those issues that were properly noticed); Golden v. Bass, 194 So. 3d 1080,

1082 (Fla. 1st DCA 2016) (holding that a court violates due process when it considers

issues not noticed for hearing). For this reason alone, the probate court erred by

hearing, considering, and disposing of Baskin's "notice of intent to seek expert witness

fees," which had not been noticed or set for hearing.4

              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. See, e.g., Herman v. Herman, 565 So. 2d 835,

835 (Fla. 3d DCA 1990) ("Fundamental concepts of due process require a party seeking

[affirmative relief] to file a written pleading and provide appropriate notice to all parties

concerned."); Clearvalle, Inc. v. Cohen, 561 So. 2d 1354, 1354 (Fla. 4th DCA 1990)

(holding that order granting an ore tenus, ex parte motion for default made with no prior

notice to any party violated due process). Hence, the judgment in favor of Fernald on

this ore tenus, ex parte motion must too be reversed.




              4No such due process concerns affect the judgment on the Alexanders'
sanctions motion, which was properly noticed for hearing. Due process requires notice
and an opportunity to be heard. J.B. v. Fla. Dep't of Children & Family Servs., 768 So.
2d 1060, 1063 (Fla. 2000); Vollmer v. Key Dev. Props., Inc., 966 So. 2d 1022, 1027
(Fla. 2d DCA 2007). A voluntary absence from a properly noticed hearing does not
implicate due process.


                                             - 11 -
              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.

                                       Conclusion

              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




                                           - 12 -
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 Martin County and Viragen to the extent that they appear to hold that costs

may properly be awarded under section 57.105(1).

             Affirmed in part, reversed in part, and conflict certified.



SLEET and SALARIO, JJ., Concur.




                                           - 13 -
