Stone v. Stone, — So.3d —-, 2014 WL 537547 (Fla. 4th DCA February 12, 2014)

Under Florida Probate Rule 5.025(d)(2), adversary probate proceedings, “as nearly as practicable, must be conducted similar to suits of a civil nature, including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525.”

If, when and how Civ. Pro. Rule 1.525, the rule setting a 30-day post-judgment deadline for filing attorney’s fee motions in civil litigation, applies to contested probate, guardianship and trust proceedings, is an important question. The last thing any lawyer wants to do is blow a deadline for claiming fees on behalf of his client, which is what happened in a string of cases I wrote about a few years ago (see here, here, here).

The problem was that a rule designed to apply in the general commercial litigation context didn’t really work in the probate, guardianship and trust context, where fee petitions are appropriately filed all the time, not just after a final judgment is entered. To fix this glitch in 2011 legislative and rule changes were adopted eliminating Rule 1.525′s 30-day deadline in the adversary probate and guardianship context, and limiting Rule 1.525′s 30-day deadline to fee petitions filed in trust proceedings by anyone other than the trustee (e.g., a beneficiary suing the trustee for malfeasance). Click here for my write of that legislation.

Unfortunately, not everyone got the memo; in the linked-to case above the trial court denied a motion for fees in an adversary probate proceeding based on Rule 1.525′s 30-day deadline. Wrong answer says the 4th DCA:

Generally, in civil proceedings, “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment … which judgment or notice concludes the action as to that party.” Fla. R. Civ. P. 1.525. However, under Florida Probate Rule 5.025(d)(2), adversary probate proceedings, “as nearly as practicable, must be conducted similar to suits of a civil nature, including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525.” This probate rule is applicable to the order on appeal in this case. In re Amendments to the Florida Probate Rules, 95 So.3d 114, 115 (Fla.2012). The inapplicability of rule 1.525 in adversary probate proceedings functions identically to the inapplicability of the rule in proceedings governed by the Florida Family Law Rules of Procedure. See Montello v. Montello, 961 So.2d 257, 258–59 (Fla.2007); Hollister v. Hollister, 965 So.2d 341, 349–50 (Fla. 2d DCA 2007); Smith v. Smith, 902 So.2d 859, 862–63 (Fla. 1st DCA 2005).

As such, the trial court erred in striking appellant’s motion for costs based on the motion being untimely served under the thirty-day rule of Florida Rule of Civil Procedure 1.525. We, therefore, reverse and remand for further proceedings on appellant’s motion for costs.