Fischer as Trustee of Dorothy L. Fischer Trust v. Fischer as Co-Trustee of Dorothy L. Fischer Trust

• Decision Date: 22 December 2021
• Docket Number: s. 4D20-1752,4D20-2052
• Citation: 332 So.3d 516
• Parties: Stephen Charles FISCHER, AS TRUSTEE OF the DOROTHY L. FISCHER TRUST, and Stephen Charles Fischer, as Attorney-in-Fact for Dorothy L. Fischer, Appellant, v. Susan Ann FISCHER, AS CO-TRUSTEE OF the DOROTHY L. FISCHER TRUST, Sandra Fischer Fraser, as Co-Trustee of the Dorothy L. Fischer Trust, Susan Ann Fischer, individually, and Marshall McDonald, Appellees.
• Court: Florida District Court of Appeals

332 So.3d 516

Stephen Charles FISCHER, AS TRUSTEE OF the DOROTHY L. FISCHER TRUST, and Stephen Charles Fischer, as Attorney-in-Fact for Dorothy L. Fischer, Appellant,

v.Susan Ann FISCHER, AS CO-TRUSTEE OF the DOROTHY L. FISCHER TRUST, Sandra Fischer Fraser, as Co-Trustee of the Dorothy L. Fischer Trust, Susan Ann Fischer, individually, and Marshall McDonald, Appellees.

Nos. 4D20-1752

4D20-2052

District Court of Appeal of Florida, Fourth District.

[December 22, 2021]

S. Brian Bull and John M. Jorgensen of Scott, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens, for appellant.

Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami, for appellee Marshall McDonald.

Klingensmith, J. Appellant Stephen Charles Fischer, as both the Trustee and the Attorney-in-Fact, appeals the trial court's Final Judgment of Attorney's Fees and Amended Final Judgment on Costs. He raises four issues on appeal, and we agree with him on two: 1) the trial court erred in awarding fees and taxing costs against appellant as the Trustee for costs which appellee Marshall McDonald incurred defending a claim brought by appellant as the Attorney-in-Fact; and 2) the trial court erred in awarding expert witness costs unrelated to trial testimony. We affirm on all other issues without comment.

Appellant appears in this proceeding wearing multiple hats: as "the Trustee" in his capacity as the trustee of the Dorothy L. Fischer Trust; as "the Attorney-in-Fact" in his capacity as the attorney-in-fact for Dorothy L. Fischer; and as an individual. The underlying action began when the Trustee sued Susan Ann Fischer and Sandra Fischer Fraser as Co-Trustees to revoke the Trust. In his initial complaint, the Trustee sought only to revoke the 2015 version of the Trust and restore the 2014 version. However, the Trustee, later joined by the Attorney-in-Fact, amended the complaint six times to add parties and claims against the suit's defendants, including a claim for damages from appellee McDonald individually for breach of fiduciary duty.

Following the fourth amended complaint, the Trustee's claim against McDonald for breach of fiduciary duty was dismissed with prejudice. In the fifth amended complaint, both the Trustee and the Attorney-in-Fact continued to seek revocation of the 2015 Trust, while only the Attorney-in-Fact sought damages from McDonald and Susan Ann Fischer as individuals. After the Trustee and Co-Trustees settled the claims between them involving the revocation of the trust, the Attorney-in-Fact filed a sixth, and final, amended complaint on the sole claim of breach of fiduciary duty against McDonald.

With the Attorney-in-Fact and McDonald as the only two remaining parties, the case went to trial on the allegations of the final amended complaint. In preparation for trial, McDonald retained an expert witness who participated in a deposition, hearings, and mediation. Although the expert attended the trial, he did not testify either in person or by deposition due to a last-minute tactical decision made by McDonald. The jury found in favor of McDonald, and he moved for attorney's fees as the prevailing party pursuant to a previously served settlement proposal to the Attorney-in-Fact, the Trustee, and appellant individually. He also moved for costs as the prevailing party at trial.

Following an evidentiary hearing, the trial court granted McDonald's entitlement to fees, and in the Final Judgment on Attorney's Fees, apportioned the amounts as follows: $23,751.00 against the Trustee; $172,910.50 against the Attorney-in-Fact; and $7,272.00 jointly and severally against the Trustee and the Attorney-in-Fact. In McDonald's motion for costs against the Trustee, the Attorney-in-Fact, and appellant individually, McDonald listed his costs under several categories, including court reporter costs, expert witness costs, and travel costs. In response, the Trustee specifically objected to the taxation of costs incurred by McDonald after the date his claim was dismissed with prejudice. He submitted that, while other costs could be taxed against the Attorney-in-Fact, McDonald could only recover, from the Trustee, court reporter costs from the motion to dismiss proceedings.

Appellant, as both the Trustee and the Attorney-in-Fact, also objected to taxing the cost of an expert witness who was deposed but did not testify at trial. The Trustee and the Attorney-in-Fact did not object to the expert witness's deposition costs,¹ but argued that any costs incurred after the deposition of the expert witness could not be levied against them because the expert ultimately did not testify. They also objected to taxing expert witness costs for time invoiced by two attorneys who helped prepare the expert witness for trial as neither were disclosed as expert witnesses nor testified at a deposition or at trial.

The trial court overruled these objections and awarded a total of $54,984.00 in costs to be jointly and severally recovered from appellant as the Trustee and the Attorney-in-Fact. Following the entry of the trial court's Amended Final Judgment on Costs, this appeal ensued.

Allocation of Fees and Costs

"A trial judge's award of attorney's fees and costs is reviewed under an abuse of discretion standard of review." Campbell v. Campbell , 46 So. 3d 1221, 1223 (Fla. 4th DCA 2010). "The party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible." Effective Teleservices, Inc. v. Smith , 132 So. 3d 335, 339 (Fla. 4th DCA 2014) (quoting Chodorow v. Moore , 947 So. 2d 577, 579 (Fla. 4th DCA 2007) ).

The Trustee argues that he was no longer party to the litigation between McDonald and the Attorney-in-Fact after his claim was dismissed, so the fees and costs incurred after the dismissal should not have been awarded against him. McDonald contends the award of fees and costs should be joint and several because appellant, as the Trustee, had argued in response to McDonald's motion for attorney's fees that the claims brought by the Trustee and the Attorney-in-Fact were identical and should be considered as one claim for breach of fiduciary duty. McDonald also relies on language from the settlement agreement between the Trustee, the Attorney-in-Fact, and the Co-Trustees in which the Attorney-in-Fact agreed to be personally liable for any attorney's fees and costs assessed in the action brought against McDonald. Thus, McDonald claims that any distinction between the Trustee and the Attorney-in-Fact is merely a technical one.

We disagree. When claims are filed separately and later consolidated, it is proper "to apportion the costs between the unsuccessful plaintiffs" so one plaintiff is not liable for all costs. Martel v. Carlson , 118 So. 2d 592, 594 (Fla. 3d DCA 1960). Our court and others have held that unless the claims are inextricably intertwined, costs should be properly apportioned to parties according to the claims made by and against each at trial. Effective Teleservices , 132 So. 3d at 342 ; Rosen Bldg. Supplies, Inc. v. Krupa , 927 So. 2d 899, 900 (Fla. 4th DCA 2005) ; see Martel , 118 So. 2d at 594 ; Douglas v. Wilson , 472 So. 2d 876, 877 (Fla. 1st DCA 1985) (finding the trial court improperly rendered a joint judgment for costs when one of the parties voluntarily dismissed its claim before trial).

Here, the trial court erred in awarding fees and costs jointly and severally against the Attorney-in-Fact and the Trustee. Although the Trustee and the Attorney-in-Fact acknowledge their separate claims for breach of fiduciary duty...