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Trustees Not Individually Liable For Costs In Florida Trust Dispute

In Grasso v. Grasso, Margaret and Michelle Grasso were sued “individually and as purported cotrustees” of the Olga Grasso Revocable Living Trust.  However, claims were only asserted against Margaret and Michelle in their capacities as trustees, not in their individual capacities.  Because no claims were asserted against Margaret and Michelle in their individual capacities, the Florida appellate court ruled that “Margaret and Michelle were not parties to the action in their individual capacities” and the trial court was not permitted to tax costs against Margaret and Michelle individually.

In trust disputes, costs are governed by section 736.1006, which provides that:

(1)    In all trust proceedings, costs may be awarded as in chancery actions.

(2)    Whenever costs are to be paid out of the trust, the court, in its discretion, may direct from what part of the trust the costs shall be paid.

In chancery actions, costs are awarded to the prevailing party.  In this case, Margaret and Michelle were not the prevailing parties in the trial court, and so costs were assessed against them.  But, since no claims were pursued against Margaret and Michelle individually, the costs should have been ordered to be paid from the trust.

Courts also have discretion to direct from what part of the trusts costs shall be paid.  However, the discretion is not unlimited.  The probate code has a similar provision regarding fees and costs, section 733.106.  Section 733.106 has been interpreted to require that before fees and costs can be assessed against a beneficiary’s share of the estate, “there must be a finding of bad faith or wrongdoing by the beneficiary or other circumstances which would warrant such an assessment.” In re Estate of Lane, 562 So.2d 352 (Fla. 4th DCA 1990).

The State of Florida has statewide guidelines governing the taxation of costs.  Costs that should be taxed are:

A. Depositions

1. The original and one copy of the deposition and court reporter‘s per diem for all depositions.

2. The original and/or one copy of the electronic deposition and the cost of the services of a technician for electronic depositions used at trial.

3. Telephone toll and electronic conferencing charges for the conduct of telephone and electronic depositions.

B. Documents and Exhibits

1. The costs of copies of documents filed (in lieu of ―actually cited‖) with thecourt, which are reasonably necessary to assist the court in reaching a conclusion.

2. The costs of copies obtained in discovery, even if the copies were not used at trial.

C. Expert Witnesses

1. A reasonable fee for deposition and/or trial testimony, and the costs ofpreparation of any court ordered report.

D. Witnesses

1. Costs of subpoena, witness fee, and service of witnesses for depositionand/or trial.

E. Court Reporting Costs Other than for Depositions

1. Reasonable court reporter‘s per diem for the reporting of evidentiaryhearings, trial and post-trial hearings.

F. Reasonable Charges Incurred for Requiring Special Magistrates, Guardians Ad Litem, and Attorneys Ad Litem

Other costs, such as the costs and fees of a mediator, or travel expenses of witnesses, may be taxed as costs.

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