NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

In re Estate of Paula X. Assimakopoulos, )

deceased; and In re Trust Administration )

of the Paula X. Assimakopoulos Trust )

U/T/A 4/15/2008. )

)

)

EVA LANA, )

)

Appellant, )

)

v. ) Case No. 2D15-4205

)

NICOLLE ASSIMAKOPOULOS- )

PANUTHOS, individually and as )

personal representative of the estate )

and as cotrustee of the trust; GARY M., )

FERNALD, as curator of the estate; )

ALEXANDER P. ALEXANDER; and )

PLATO J. ALEXANDER, )

)

Appellees. )

)

Opinion filed June 23, 2017. 

Appeal from the Circuit Court for Pinellas 

County; Jack St. Arnold, Judge.

Dineen Pashoukos Wasylik of DPW Legal, 

Tampa, for Appellant.

George J. Felos of Felos & Felos, Dunedin, 

for Appellees Alexander P. Alexander and 

Plato J. Alexander.
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Jeffrey A. Eisel and Hamden H. Baskin, III, 

of Baskin Fleece, Clearwater, for Appellee 

Nicolle Assimakopoulos-Panuthos. 

No appearance for Gary M. Fernald. 

VILLANTI, Chief Judge.

In this probate proceeding, Eva Lana appeals the probate court's order 

awarding sanctions against her pursuant to section 57.105, Florida Statutes (2015), and 

two other judgments against her awarding expert witness fees to another party's 

attorney and to the curator of the estate. While Lana challenges the sanctions judgment 

on numerous grounds, we find merit only in her contention that that judgment improperly 

includes an award of expert witness fees. We also find merit in her contention that the 

expert witness fees awarded to the personal representative's attorney, Hamden Baskin,

and to the court-appointed curator of the estate, Gary Fernald, were awarded in 

violation of due process. We therefore reverse the sanctions judgment in part and the 

judgments in favor of Baskin and Fernald in total. In all other respects, we affirm. 

Facts

While a recitation of the long, contentious, and convoluted history of this 

case is unnecessary to our resolution of this case, some background is necessary to 

understand our ruling. The death of Paula X. Assimakopoulos ignited numerous 

disputes between her two daughters, Lana and Nicolle Assimakopoulos-Panuthos, and 

their uncle and cousin, Alexander P. Alexander and Plato J. Alexander. The first 

dispute centered on where Assimakopoulos's estate would be probated. Ultimately, 

after some not insignificant wrangling, Lana agreed that the Florida courts had 
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jurisdiction to probate the estate. Probate was opened in Pinellas County, Lana and 

Panuthos were appointed as co-personal representatives, and probate proceedings 

began. Later, after proceedings became bogged down due to disagreements between 

the co-personal representatives, Lana was removed as a co-personal representative, 

although she remained active in the case as a beneficiary. 

As the family disputes continued three years after the estate was opened, 

Lana filed a petition to revoke probate, alleging that the documents initially used to 

establish Assimakopoulos's domicile in Florida were incomplete and falsely presented 

and that a full review of all of her documents and affairs would show that probate 

jurisdiction was properly in New York rather than Florida. In response to this petition, 

the Alexanders and Panuthos filed motions to dismiss, which were granted after an 

evidentiary hearing. Hence, the petition to revoke probate was denied. 

Lana initially appealed the probate court's order denying her petition; 

however, shortly after the notice of appeal was filed in this court, Lana filed a motion 

asking this court to relinquish jurisdiction so that the probate court could entertain a 

motion to vacate the denial of the petition under Florida Rule of Civil Procedure 1.540. 

This court granted that motion and relinquished jurisdiction. Lana then filed her rule 

1.540 motion, and the probate court held an evidentiary hearing on it. At the conclusion 

of the hearing, the probate court denied the motion. 

Shortly thereafter, the Alexanders filed a motion for sanctions in the 

probate court under section 57.105(1) based on Lana's filing of the above rule 1.540 

motion, which they asserted was not supported by either the facts or the law, and they 

noticed their motion for hearing. In preparation for the hearing on this motion, Lana 
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subpoenaed Baskin as the attorney for the personal representative, Fernald as the 

court-appointed curator of the estate, and her own former attorneys. In response to 

Lana's subpoena, Baskin filed a notice of intent to seek an expert witness fee, to which 

Lana objected. Baskin did not file a motion actually seeking a fee, and his "notice" was 

not set for hearing. 

Despite having subpoenaed witnesses for the hearing on the Alexanders' 

sanctions motion, Lana did not appear for that hearing. However, since the hearing had 

been properly noticed, the probate court went forward, first taking testimony from 

George Felos, who was counsel for the Alexanders. The Alexanders also presented the 

testimony of expert fee witness Deborah Bushnell. When the Alexanders finished their 

presentation, the court asked Baskin whether he wanted to be heard. At that point, 

Baskin argued that he was entitled to an expert witness fee for his appearance that day, 

contending that the "only way" that he could have been subpoenaed was to present 

expert testimony on fees. The probate court then asked Fernald whether he had 

anything to add. Fernald then made an ore tenus "me too" motion for an award of an 

expert witness fee. The probate court subsequently granted the Alexanders' motion for 

sanctions, entered a sanctions judgment in their favor, and included an expert witness 

fee for Bushnell in that judgment. The probate court also entered separate judgments in 

favor of Baskin and Fernald for expert witness fees. Lana has appealed each of these 

judgments.

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1

In her appeal, Lana also challenged the denial of her motion to continue 

the sanctions hearing, the denial of her ex parte ore tenus motion to appear by phone, 

the amount of attorney's fees included in the sanctions judgment in favor of the 

Alexanders, and the imposition of the sanctions judgment against solely her rather than 

against her and her attorney jointly. We reject these arguments without discussion. 
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Award of Expert Witness Fees to the Alexanders

Lana argues first that the probate court's decision to include an expert 

witness fee for Bushnell in the sanctions judgment was improper because the plain 

language of section 57.105(1) does not authorize such an award. We agree. 

Section 57.105(1) provides as follows: 

Upon the court's initiative or motion of any party, the court 

shall award a reasonable attorney's fee, including 

prejudgment interest, to be paid to the prevailing party in 

equal amounts by the losing party and the losing party's 

attorney on any claim or defense at any time during a civil 

proceeding or action in which the court finds that the losing 

party or the losing party's attorney knew or should have 

known that a claim or defense when initially presented to the 

court or at any time before trial:

(a) Was not supported by the material facts necessary to 

establish the claim or defense; or

(b) Would not be supported by the application of thenexisting law to those material facts.

As is clear from the plain language of the statute, the sanction permitted is an award of 

attorney's fees only. Costs are not included. This is in contrast to the plain language of 

section 57.105(2), which provides for a sanction of "damages," measured as the 

"reasonable expenses incurred in obtaining the order," when the court finds that an 

action taken by the opposing party was taken primarily for the purpose of unreasonable 

delay. Under subsection (2), costs could be included as part of damages; however, this 

language is absent from subsection (1), which provides only for an award of attorney's 

fees. 

And indeed, several courts, including this one, have specifically held that 

an award of sanctions under section 57.105(1) may not include costs. See, e.g., Heldt-
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Pope v. Thibault, 198 So. 3d 650, 652 (Fla. 2d DCA 2015) (affirming award of attorney's 

fees under section 57.105(1) but reversing the award of costs because "section 

57.105(1) does not provide for the award of costs"); Siegel v. Rowe, 71 So. 3d 205, 210 

n.2, 214 (Fla. 2d DCA 2011) (reversing cost award under section 57.105(1) against 

attorneys as unauthorized but affirming it against the party under section 57.041(1)); 

Jackmore v. Estate of Jackmore, 145 So. 3d 170, 170 (Fla. 1st DCA 2014) (reversing 

award of costs under section 57.105 because such an award "is not authorized"); 

Ferere v. Shure, 65 So. 3d 1141, 1145 (Fla. 4th DCA 2011) (stating that an award of 

costs is not permitted under section 57.105(1)); Santini v. Cleveland Clinic Fla., 65 So. 

3d 22, 36 (Fla. 4th DCA 2011) (same); Ferdie v. Isaacson, 8 So. 3d 1246, 1251 (Fla. 4th 

DCA 2009) (same). Hence, to the extent that the sanctions judgment against Lana 

includes an award of costs, it was patently improper. 

And, as Lana properly points out, expert witness fees are taxed as costs. 

Section 92.231(2), Florida Statutes (2015), provides, in pertinent part: 

Any expert or skilled witness who shall have testified in any 

cause shall be allowed a witness fee including the cost of 

any exhibits used by such witness in an amount agreed to by 

the parties, and the same shall be taxed as costs. 

(Emphasis added.) Further, the Florida Supreme Court has specifically held that 

"expert witness fees . . . may be taxed as costs for a lawyer who testifies as an expert 

as to reasonable attorney's fees." Travieso v. Travieso, 474 So. 2d 1184, 1186 (Fla. 

1985) (second emphasis added). Hence, the fee charged by a lawyer to appear as an 

expert witness is considered a cost, not an attorney's fee, and it is awardable only when 

costs are properly awarded. 
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Here again, as noted above, section 57.105(1) provides only for an award 

of attorney's fees—not costs. Therefore, the sanctions judgment awarding attorney's 

fees and costs to the Alexanders must be reversed to the extent that it purports to 

award $2700 in expert witness fees to Bushnell because that award constitutes an 

award of costs, which is impermissible under section 57.105(1). 

In defense of the trial court's award, the Alexanders point to several cases 

in which it appears that an award of costs was affirmed under section 57.105. However, 

several of the cases to which they point do not clearly hold that costs are recoverable 

under section 57.105(1). For example, in Wells v. Halmac Development, Inc., 184 So. 

3d 620, 622 (Fla. 3d DCA 2016), the issue on appeal was whether prejudgment interest 

should have been awarded on the attorney's fee award—not whether costs were 

properly awarded. While the attorney's fees had apparently been awarded under 

section 57.105, the opinion notes that $1409.77 in costs and $7200 in expert witness 

costs were also included in the judgment. Id. However, the discussion of the award 

under section 57.105(1) does not mention the costs or expert witness fees, and the 

party recovering the fees and costs was also the prevailing party in the appeal and so 

would have been entitled to an award of costs under section 57.041(1). Id. at 622-23. 

Therefore, it is not clear that the Wells decision truly stands for the proposition that 

costs are recoverable under section 57.105(1). 

Similarly, in Indemnity Insurance Co. of North America v. Chambers, 732 

So. 2d 1141, 1142 (Fla. 4th DCA 1999), the trial court granted defendant Tetra Pak's 

motion to dismiss and found that it was entitled to an award of "attorney's fees under 

section 57.105(1)." The trial court also awarded Tetra Pak its expert witness fees, but 
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the basis for this award is not identified in the opinion. As in Wells, Tetra Pak was the 

prevailing party and would have been entitled to an award of costs under section 

57.041(1). Thus, the court's opinion does not clearly affirm an award of costs under 

section 57.105(1). 

Likewise, in Walker v. Cash Register Auto Insurance of Leon County, Inc., 

946 So. 2d 66, 68-69 (Fla. 1st DCA 2006), the trial court awarded "costs and fees" 

under section 42 U.S.C. § 1988 and also granted "57.105 fees." The issue on appeal 

was whether the award was proper under section 57.105 when no twenty-one-day 

notice was given. Id. at 69. The First District first discussed the "award of section 

57.105 fees." Id. at 70. It found that the award under section 57.105 was supported by 

the record, but the opinion did not specify whether it was an award of fees only or both 

fees and costs. Id. In its conclusion, the court reversed the "award of attorney's fees 

and costs under 42 U.S.C. § 1988" and affirmed "the award under section 57.105(1)." 

Id. at 72. Hence, it is not entirely clear from the text of the opinion whether any award of 

costs was actually made under 57.105(1). 

Importantly, none of these nonbinding cases from our sister courts clearly 

award costs in violation of the plain language of section 57.105(1). Instead, it is unclear

in each case whether the costs were imposed under section 57.105(1) or on some other 

basis. Therefore, we do not believe that our ruling conflicts with the actual result in any 

of those cases. 

However, two cases cited by the Alexanders do contain language that 

appears to affirm an award of costs under section 57.105(1). In Martin County

Conservation Alliance v. Martin County, 73 So. 3d 856 (Fla. 1st DCA 2011), the 
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appellate court dismissed an appeal and then, on its own initiative, awarded sanctions 

under section 57.105(1). While the decision repeatedly states that Martin County is 

entitled to recoup its attorneys' fees under section 57.105(1), see id. at 857, 858, at the 

end of the opinion, the court awards both attorneys' fees and costs under the authority 

of section 57.105(1), id. at 865. This award is at odds with the plain language of the 

statute as well as the First District's subsequent decision in Jackmore. 

Likewise, in Smith v. Viragen, Inc., 902 So. 2d 187, 191 (Fla. 3d DCA 

2005), the court affirmed an award of both attorney's fees and costs, noting that it need 

not distinguish between the amounts awarded under section 895.01, Florida Statutes, 

and section 57.105 "because the entire award could have been made pursuant to 

section 57.105 alone." As in Martin County, the award of costs on this basis conflicts

with the plain language of section 57.105. 

While we recognize the decisions in Martin County and Viragen, neither of 

these cases leads us to conclude that an award of costs is proper under section 

57.105(1). Instead, we follow the plain language of section 57.105(1), as well as our 

own prior binding decisions in Heldt-Pope and Siegel, and hold that the award of expert 

witness fees as a cost under section 57.105(1) was improper. Accordingly, we reverse 

the sanctions judgment in favor of the Alexanders to the extent that it awards expert 

witness fees as a cost. We also certify conflict with Martin County and Viragen on this 

point. 
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Award of Expert Witness Fees to Baskin and Fernald

Lana also argues that the probate court erred by awarding "expert witness 

fees" in separate judgments to both Baskin and Fernald in violation of due process. We 

agree and reverse both of these judgments for several reasons. 

First, entry of these judgments violated due process because neither Lana 

nor anyone else was notified that these claims would be considered at the sanctions 

hearing. While it is true that Baskin filed a "notice of intent" to seek an expert witness 

fee under Florida Rule of Civil Procedure 1.390, that rule requires that all parties "be 

served with notice of any hearing to determine the fee." It is undisputed that there was 

never any notice that Baskin's fee "notice" would be considered at the hearing on the 

Alexanders' motion for sanctions. And when a court considers issues not noticed for 

hearing, the court denies the litigant due process, and any ensuing order or judgment 

must be reversed. See, e.g., Barile v. Gayheart, 80 So. 3d 1085, 1087 (Fla. 2d DCA 

2012); Minda v. Ponce, 918 So. 2d 417, 421-22 (Fla. 2d DCA 2006) (holding that due 

process was violated when the court considered issues not noticed for hearing in 

addition to those issues that were properly noticed); Golden v. Bass, 194 So. 3d 1080, 

1082 (Fla. 1st DCA 2016) (holding that a court violates due process when it considers 

issues not noticed for hearing). For this reason alone, the probate court erred by 

hearing, considering, and disposing of Baskin's "notice of intent to seek expert witness 

fees," which had not been noticed or set for hearing.

2

 

 

2No such due process concerns affect the judgment on the Alexanders' 

sanctions motion, which was properly noticed for hearing. Due process requires notice 

and an opportunity to be heard. J.B. v. Fla. Dep't of Children & Family Servs., 768 So. 

2d 1060, 1063 (Fla. 2000); Vollmer v. Key Dev. Props., Inc., 966 So. 2d 1022, 1027 
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Likewise, the court's consideration of Fernald's ore tenus "me too" motion 

for an expert witness fee violates due process. Not only was such motion not noticed 

for hearing, but it had not even been made before the hearing. Entry of judgment on a 

motion never made, never served upon the opposing party, and never noticed for 

hearing patently violates due process. See, e.g., Herman v. Herman, 565 So. 2d 835, 

835 (Fla. 3d DCA 1990) ("Fundamental concepts of due process require a party seeking 

[affirmative relief] to file a written pleading and provide appropriate notice to all parties 

concerned."); Clearvalle, Inc. v. Cohen, 561 So. 2d 1354, 1354 (Fla. 4th DCA 1990) 

(holding that order granting an ore tenus, ex parte motion for default made with no prior 

notice to any party violated due process). Hence, the judgment in favor of Fernald on 

this ore tenus, ex parte motion must too be reversed. 

Second, in addition to reversal on due process grounds, the judgments in 

favor of Baskin and Fernald must be reversed because rule 1.390—under which Baskin 

explicitly and Fernald implicitly proceeded—does not authorize an award of fees under 

the circumstances presented here. Rule 1.390 is entitled "Depositions of Expert 

Witnesses," and it provides for a fee to an expert witness whose deposition is taken. 

Neither Baskin nor Fernald were deposed. Therefore, neither was entitled to an expert 

witness fee under this rule. 

In this appeal, Baskin argues for the first time that his judgment should be 

affirmed because he was entitled to the fee under section 92.231, Florida Statutes 

(2015). Notably, this was not the basis asserted for the award in Baskin's "notice of 

 

(Fla. 2d DCA 2007). A voluntary absence from a properly noticed hearing does not 

implicate due process. 
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intent" to seek a fee, nor was it argued at the hearing. Further, section 92.231(2) 

permits an award of an expert witness fee only to an expert who "shall have testified in 

any cause," and it is undisputed that neither Baskin nor Fernald testified at the 

sanctions hearing. Therefore, even if section 92.231(2) had been raised as a basis for 

the award in the probate court, the court could not have properly awarded expert 

witness fees on that basis since the statutory prerequisites were not met. For this 

reason as well, the expert witness fee judgments in favor of Baskin and Fernald must be 

reversed. 

Conclusion

In sum, the probate court erred by including Bushnell's expert witness fees 

as part of the sanctions judgment entered in favor of the Alexanders under section 

57.105(1). To the extent that the final judgment on sanctions in favor of the Alexanders

includes this award, it is reversed. The probate court also erred by awarding expert 

witness fees to Baskin and Fernald in violation of due process and the rules of civil 

procedure and without any valid statutory basis for such an award. Therefore, we 

reverse the judgments in favor of Baskin and Fernald in their entirety. We also certify 

conflict with Martin County and Viragen to the extent that they appear to hold that costs 

may properly be awarded under section 57.105(1). 

Affirmed in part, reversed in part, and conflict certified. 

SLEET and SALARIO, JJ., Concur.