Levine v. Stimmel

Levine v. Stimmel, --- So.3d --- (Fla. 5th DCA 2019)

Florida Statutes F.S. 736.1004 provides that in actions for breach of fiduciary duty or challenging a trustee's exercise (or nonexercise) of their powers, and in trust modification proceedings, the court may award fees as in chancery actions. Here, the Court considered whether F.S. 736.1004 allowed a party to recover fees after unsuccessfully litigating entitlement to fees under F.S. 57.105. 

More specifically, in this instance a fiduciary sought fees under F.S. 736.1004 after successfully defending claims revolving around alleged breaches of fiduciary duty. Part of the fees she sought were those incurred pursuing an unsuccessful F.S. 57.105 motion. The Court held that because F.S. 736.1004 does not expressly authorize recovery of attorney's fees for time spent litigating an alternative ground for fees, the fees incurred litigating the entitlement to fees were not recoverable.

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