IN RE: ESTATE OF Phillip D. O'CONNELL (1998)

Boose, Casey, Ciklin, Lubitz, Martens, McBane & O'Connell (Boose, Casey) appeals a final judgment awarding the firm attorney's fees of $4,000 pursuant to section 57.105 from F. Ted Brown, Jr., as trustee of the Phillip D. O'Connell family trust and denying additional claims for attorney's fees and costs.   We affirm the final judgment in all respects except as to the trial court's denial of Boose, Casey's claim for costs under Florida Rule of Civil Procedure 1.420(d).

Rule 1.420(d) requires that “[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.”  Fla. R. Civ. P. 1.420(d);  Century Constr. Corp. v. Koss, 559 So.2d 611, 612 (Fla.1990).   Under rule 1.420(d), the trial court was required to assess costs in favor of Boose, Casey based on Brown's Voluntary dismissals of his actions against the firm.

Boose, Casey also argues it was entitled to an award of attorney's fees because rule 1.420(d) allows an award of fees when a statute provides assessment of fees as proper costs.   As to this latter point, the statutory authority to which Boose, Casey points, section 733.6171, does not apply to this case.  Bitterman v. Bitterman, 714 So.2d 356, 23 Fla. L. Weekly S168 (Fla.1998).   Thus, Boose, Casey was not entitled to attorney's fees under rule 1.420(d).

POLEN, J.

STEVENSON, J., and BROWN, LUCY C., Associate Judge, concur.