Dayton v. Conger, 448 So. 2d 609 (Fla. 3d DCA 1984). · Go Syfert
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Dayton v. Conger, 448 So. 2d 609 (Fla. 3d DCA 1984). Cases Citing This Book View Copy Cite
“the rule in chancery cases is that a court of equity may, as justice requires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party.”
33 citation events (7 in the last 25 years) across 2 distinct courts.
Strongest positive: Elizabeth Joy Dascal v. Jacqueline Dascal Chariff (fladistctapp, 2026-01-14)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Elizabeth Joy Dascal v. Jacqueline Dascal Chariff
Fla. Dist. Ct. App. · 2026 · quote attribution · 1 verbatim quote · confidence high
the rule in chancery cases is that a court of equity may, as justice requires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party.
cited Cited as authority (rule) Bennett v. Berges
Fla. Dist. Ct. App. · 2010 · confidence medium
See Snyder v. Bell, 746 So.2d 1100, 1104 (Fla. 2d DCA 1999); Dayton v. Conger, 448 So.2d 609, 612 (Fla. 3d DCA 1984).
discussed Cited as authority (rule) First Union National Bank v. Turney
Fla. Dist. Ct. App. · 2003 · confidence medium
Further, "[t]he well settled `rule in chancery cases is that a court of equity may, as justice requires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party.'" Estate of Brock, 695 So.2d 714, 716 (Fla. 1st DCA 1996)(quoting Dayton v. Conger, 448 So.2d 609, 612 (Fla. 3d DCA 1984)).
discussed Cited as authority (rule) Brophy v. Condon
Fla. Dist. Ct. App. · 2000 · confidence medium
Although the trial court in a probate proceeding has broad discretion to apportion taxable costs between the parties (see Dayton v. Conger, 448 So.2d 609, 612 (Fla. 3d DCA 1984); § 733.106(1), Fla. Stat. (1997)), we conclude that the trial court abused its discretion here because it awarded costs for expenses that are not properly taxable as costs.
discussed Cited as authority (rule) In Re Estate of Williams
Fla. Dist. Ct. App. · 2000 · confidence medium
Although the trial court in a probate proceeding has broad discretion to apportion taxable costs between the parties ( see Dayton v. Conger, 448 So.2d 609, 612 (Fla. 3d DCA 1984); § 733.106(1), Fla. Stat. (1997)), we conclude that the trial court abused its discretion here because it awarded costs for expenses that are not properly taxable as costs.
examined Cited as authority (rule) Snyder v. Bell (4×) also: Cited "see"
Fla. Dist. Ct. App. · 1999 · confidence medium
To this end, the trial court has the discretion to "order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party." Dayton v. Conger, 448 So.2d 609, 612 (Fla. 3d DCA 1984) (citing Akins v. Bethea, 160 Fla. 99 , 33 So.2d 638, 640 (1948)).
discussed Cited as authority (rule) Furlong v. Raimi (2×) also: Cited "see"
Fla. Dist. Ct. App. · 1999 · confidence medium
This statute, which must be strictly construed, see Dayton v. Conger, 448 So.2d 609, 611 (Fla. 3d DCA 1984), provides no relief to Furlong as she was neither the personal representative or proponent of the decedent’s last known will nor did she seek to have the decedent’s last known will admitted to probate.
discussed Cited as authority (rule) Nalls v. Millender
Fla. Dist. Ct. App. · 1998 · confidence medium
"The well settled `rule in chancery cases is that a court of equity may, as justice requires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party.'" Estate of Brock, 695 So.2d 714, 716 (Fla. 1st DCA 1996) (quoting Dayton v. Conger, 448 So.2d 609, 612 (Fla. 3d DCA 1984) (citing Akins v. Bethea, 160 Fla. 99 , 33 So.2d 638, 640 (1948))).
discussed Cited as authority (rule) Estate of Brock
Fla. Dist. Ct. App. · 1996 · confidence medium
The well settled "rule in chancery cases is that a court of equity may, as justice requires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party." Dayton v. Conger, 448 So.2d 609, 612 (Fla. 3d DCA 1984), citing Akins v. Bethea, 160 Fla. 99 , 33 So.2d 638, 640 (1948).
discussed Cited "see" Anderson v. McDonough
Fla. Dist. Ct. App. · 2016 · signal: see · confidence high
See Snyder v. Bell, 746 So.2d 1100, 1104 (Fla. 2d DCA 1999) (“[Sjection 733.106, which provides for attorney’s fees for services rendered to an estate, does not provide a valid basis for personal .liability for attorney’s fees.”) (citing Dayton v. Conger, 448 So.2d 609, 611 (Fla. 3d DCA 1984)); see also Dourado v. *268 Chousa, 604 So.2d 864, 865-66 (Fla. 5th DCA 1992).
discussed Cited "see" Brindle v. Brindle
Fla. Dist. Ct. App. · 2008 · signal: see · confidence high
See Dayton v. Conger, 448 So.2d 609, 611-12 (Fla. 3d DCA 1984); Dourado v. Chousa, 604 So.2d 864, 865 (Fla. 5th DCA 1992); cf. § 733.106(3)-(4), Fla. Stat. (2006) (allowing, in proper circumstances, attorneys fees and costs to be awarded from interests in an estate).
discussed Cited "see" Matter of Estate of Leslie
Colo. Ct. App. · 1994 · signal: see · confidence high
See Dayton v. Conger, 448 So.2d 609 (Fla.Dist.Ct.App.1984); In re Estate of Campbell, 46 Haw. 475 , 382 P.2d 920 (1963); Boston Safe Deposit & Trust Co. v. Stone, 348 Mass. 345 , 203 N.E.2d 547 (1965); In re King’s Estate, 336 Pa. 1 , 7 A.2d 297 (1939).
discussed Cited "see" Espinosa v. SPARBER, SHEVIN
Fla. Dist. Ct. App. · 1991 · signal: see · confidence high
See Dayton v. Conger, 448 So.2d 609, 611 (Fla. 3d DCA 1984) (recognizing that fees from separate litigation may be recovered as special damages in an action between one of the parties to the separate litigation and the party allegedly creating the need for the litigation); State Farm Fire & Casualty Co. v. Pritcher, 546 So.2d 1060 (Fla. 3d DCA 1989) (same; wrongful act doctrine).
cited Cited "see" In re Estate of Lane
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See Dayton v. Conger, 448 So.2d 609 (Fla. 3rd DCA 1984); Cohen v. Schwartz, 538 So.2d 922 (Fla. 3rd DCA 1989); see also Estate of Gerhart, 220 So.2d 655 (Fla. 3rd DCA 1969).
discussed Cited "see" In Re Estate of Simon
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
In chancery or equity actions, the well-settled rule is that "costs follow the judgment unless there are circumstances that render application of this rule unjust." Burnett v. Brito, 478 So.2d 845, 848 (Fla. 3d DCA 1985); Calder Race Course, Inc. v. Gaitan, 430 So.2d 975 (Fla. 3d DCA 1983); see Dayton v. Conger, 448 So.2d 609 (Fla. 3d DCA 1984).
Retrieving the full opinion text from the archive…
Dorothy Helen DAYTON, M.D., Mary Johnson, Anne Cooper, Laurie Cauthen, Marcie Lynn Conger and George Drew Conger, Appellants,
v.
Thomas A. CONGER, Appellee.
83-1654.
District Court of Appeal of Florida, Third District.
Apr 17, 1984.
448 So. 2d 609
Nesbitt, Baskin and Ferguson.
Cited by 23 opinions  |  Published

[*610] Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael P. Andersen, Miami, for appellants.

Sparber, Shevin, Shapo & Heilbronner and Jeffrey M. Weissman, Miami, for appellee.

Before NESBITT, BASKIN and FERGUSON, JJ.

NESBITT, Judge.

Various beneficiaries of decedent's estate appeal an order awarding a trustee of estate assets attorney's fees and costs in connection with an action instituted by him to set aside the exercise of a power of appointment. We reverse in part and affirm in part.

Under the terms of decedent's will, appellee was named sole trustee of several testamentary trusts, including a marital trust. By the provisions of the marital trust, the decedent's spouse was given a special inter vivos power of appointment in favor of decedent's descendants over the trust assets. The spouse purportedly exercised[*611] this power in favor of the beneficiaries herein, giving them some of the assets outright and other assets in trust. The trustee, thereupon, filed a petition to declare the exercise of the power ineffective. After trial on the issues raised in the petition, the probate court found that the decedent's spouse lacked capacity to execute the exercise, that the exercise was the product of undue influence by the beneficiaries, and that the exercise distributed assets in a manner contrary to the decedent's intent. Thus, the court declared the exercise ineffective. These findings of the probate court were not appealed.

Subsequently, the trustee filed a petition for assessment and allocation of interim attorney's fees and for partial distribution. The order appealed from granted $50,000 in attorney's fees and $4,626.25 in costs as a result of the action to set aside the exercise of the power of appointment. The court found the beneficiaries personally and jointly and severally liable for the above sums. The order directed, however, that the money be paid from their shares in the estate, and that execution on nonestate assets be stayed until good cause is shown or if the beneficiaries' estate assets are insufficient.

The first issue presented is whether the beneficiaries can be held personally liable for attorney's fees thus subjecting their non-estate assets to execution. The trial court, relying on Sheridan v. Greenberg, 391 So.2d 234 (Fla. 3d DCA 1980), found that the beneficiaries could be held personally liable. We disagree.

We held, in Sheridan, that where the fees sought are those incurred during the lawsuit between the parties, the rule is that attorney's fees will be awarded only pursuant to a contract or statute. 391 So.2d at 236-37. We then distinguished those cases which allowed recovery of attorney's fees as an element of damages within a lawsuit. Sheridan, 391 So.2d at 237. See Tidwell v. Witherspoon, 21 Fla. 359 (1885) (attorney's fees incurred in defending a prosecution are recoverable as an element of damages in a malicious prosecution action); Bondy v. Royal Indemnity Co., 134 Fla. 776, 184 So. 241 (1938) (attorney's fees incurred in dissolving an improperly sued out writ of attachment are recoverable as an element of damages in a subsequent action); Susman v. Schuyler, 328 So.2d 30 (Fla. 3d DCA 1976) (attorney's fees incurred in removing the cloud from one's title are recoverable as an element of damages in a slander of title action). In those situations, the rule requiring contractual or statutory authority to award attorney's fees is inapplicable. In other words, pure attorney's fees incurred in prosecuting or defending the action itself may only be awarded under the general rule requiring a statute or contract, but attorney's fees allowed as special damages do not fall within this general rule. Glusman v. Lieberman, 285 So.2d 29, 31 (Fla. 4th DCA 1973). Because we find that this case, like Sheridan, involves a claim for fees for prosecuting the action itself, we find such an award is only permissible if provided for by statute or contract.

Although section 733.106(3), Florida Statutes (1983), provides for awarding fees for services rendered to the estate by attorneys, it must be strictly construed. Roberts v. Carter, 350 So.2d 78 (Fla. 1977). So construed, it does not authorize the imposition of personal liability upon the beneficiary for the attorney's fees at issue here. Recognizing that attorney's fees may not be awarded against a party in the absence of a valid statute, Sanchez v. Sanchez, 435 So.2d 347, 350 (Fla. 3d DCA 1983), and finding no other statutory authorization, we conclude that the beneficiaries cannot be held personally liable.

The next issue presented is whether the probate court properly ordered that the attorney's fees be paid out of the beneficiaries' shares of the estate. Section 733.106(4) provides:

When ... attorney fees are to be paid out of the estate, the court may, in its discretion, direct from what part of the estate they shall be paid.

[*612] This provision gives the probate court latitude in determining which assets of the estate should be used to pay attorney's fees. The statute authorizes the court to order that attorney's fees be borne unequally by different portions of the estate when warranted by appropriate circumstances. Here, the probate court, finding the beneficiaries had been guilty of wrongdoing, was acting within its discretion authorized by the statute when it ordered that the attorney's fees be paid out of the beneficiaries' shares of the estate.

The final issue presented is whether the portion of the court's order assessing costs against the beneficiaries personally was proper. In any probate proceeding, the court may award costs as in chancery actions. § 733.106(1) Fla. Stat. (1983). The rule in chancery cases is that a court of equity may, as justice requires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party. Akins v. Bethea, 160 Fla. 99, 33 So.2d 638, 640 (1948). Here, the probate court found that the beneficiaries had wrongfully procured the exercise of the power of appointment. It was well within the court's discretion, therefore, to tax the court costs against the losing beneficiaries. In re Estate of Sulin, 204 So.2d 28 (Fla. 2d DCA 1967). Of course, the probate court could also order these costs be paid out of the beneficiaries' interest in the estate. § 733.106(4).

For the foregoing reasons, the portions of the probate court's order imposing personal liability on the beneficiaries for attorney's fees is reversed; the portions of the order directing that attorney's fees be paid out of the beneficiaries' shares of the estate, and imposing personal liability on the beneficiaries for costs are affirmed.

Reversed in part and affirmed in part.