Levin v. Levin

PER CURIAM.

In this probate case, appellant appeals a judgment assessing attorney’s fees against her share of the estate as well as an order taxing costs against her. The trial court did not make the requisite finding of any bad faith, wrongdoing, or frivolousness before awarding fees against appellant’s share of the estate. See Geary v. Butzel Long, P.C., 13 So.3d 149 (Fla. 4th DCA 2009); In re Estate of Lane, 562 So.2d 352 (Fla. 4th DCA 1990). Accordingly, we reverse and remand for the trial court to determine, either from the record or after an evidentiary hearing, whether appellant engaged in any bad faith, wrongdoing, or frivolousness in the pursuit of her claim. The trial court should make this determination after deciding whether the will and trust were the product of an “insane delusion,” as we directed in the related case of Levin v. Levin, 60 So.3d 1116 (Fla. 4th DCA 2011). Although we find no abuse of discretion in the inclusion of the trial notebook and demonstrative aids in the calculation of costs, we nevertheless reverse the order taxing costs, as the award of costs is dependent upon who is ultimately the prevailing party.

Reversed and remanded for further proceedings.

CIKLIN, LEVINE, JJ., and THORNTON, JOHN W, JR., Associate Judge, concur.