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FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 12/1/2022 4:30:00 PM.****
Filing # 154367255 E-Filed 07/29/2022 05:21:51 PM
IN THE CIRCUIT COURT OF THE 17"1 JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
IN RE: ESTATE OF CASE NO. PRC-18-0002301(60J)
CONSOLIDATED
THEROLD JOHN RATHGEB, SR.
Deceased.
PETER RATHGEB, SANDRA BYRNES, and
I
22-00 17 60 4
PATRICIA RATHGEB
Petitioners, ADVERSARY PROCEEDING
SM.7
R.. .. $.
V.
.,
'
e ,/.,
FN Aw,L,:" .
THEROLD J. RATHGEB, JR., as
Personal Representativeand individually, C U B T? @.
Respondent.
r DECO 12022
Lj./
PETER RATHGEB, SANDRA BYRNES, and By
PATRICIA RATHGEB
Plaintiffs,
V.
THEROLD J. RATHGEB, JR., individually
And as Trustee of Therold J. Rathgeb
Revocable Trust,
Defendant.
i
MOTION TO TAX ATTORNEY'S FEES AND COSTS
COMES NOW, Defendant, THEROLD J. RATHGEB, Jr. (hereinafter,"John"), by and
through his undersigned counsel, and hereby files a Motion to Tax Attorney's Fees and Costs
pursuant to Section 736.1004, Florida Statute, against Plaintiffs. PETER RATHGEB, SANDRA
BYRNES, and PATRICIA RATHGEB, and in support thereof avers the following:
1. This is an action relating to the Plaintiffs Verified Complaint e-filed with this
Honorable Court on August 28, 2018. The Complaint alleges three separate counts against John
1
****
FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 12/1/2022 4:30:00 PM.****
for (1) Cancelation ofDeed, (2) Breach of Fiduciary Duty, and (3) Tortious Interference.
2. Pursuant to Section 736.1004(1)(a), Florida Trust Code, "[i]n all actions for breach
of fiduciary duty or challenging the exercise of, or failure to exercise, a trustee's powers... the
court shall award taxable costs including chancery actions, including attorney's fees and guardian
ad litem fees. Further, Section 736.1004(2) states, "[w]hen awarding taxable costs under this
section, including- attorney fees and guardian ad litem fees, the court, in its discretion, may direct
payment from a
party's interest, if any, in the trust, or enter a judgment satisfied from other
property of the party, or both.
3. In this case, Count II of the Plaintiff's Complaint asserts allegations of breach of
fiduciaryduty. With respect to Count II for Breach of FiduciaryDuty, John did not owe a duty to
the Plaintiffs during the Decedent's lifetime. Section 736.0603(1),Fla. Stat. (2007) provides that
while a trust is revocable, the duties of the trustee are owed exclusively to the settlor. Hilgendo,f
v. Estate ofColeman,10\ So. 3d 1262, 1263 (Fla. 4th DCA 2016). Importantly, the Trust remained
unfunded because the Decedent did not have any assets that would have been poured over into the
Trust. The Decedent's assets transferred outside of probate and/or by operation of law. Because
the Trust was never funded, John had no duty to administer the Trust and the Plaintiffs cannot have
suffered damages for administrationof an unfunded Trust.
4. The Decedent did not have any probate assets, nor is the Trust funded with any
assets from the Decedent.
5. John respectfully request this Court tax and apportion attorney's fees and costs
associated with defending a breach of fiduciaryduty claim against the Plaintiffs, individually.
WHEREFORE, Therold J. Rathgeb, Jr., respectfully requests this Court to enter an Order
taxing and apportioning attorney's fees and costs associated with defending claims asserted in the
2
****
FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 12/1/2022 4:30:00 PM.****
Plaintiffs Verified Complaint against the Plaintiffs,individually, and award such other and further
relief as this Court deems just and proper under the circumstances, including attorneys' fees and
costs.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true copy ofthe foregoing was furnished via Florida
Courts e-Filing Portal to Adrian Philip Thomas, PA Counsel
th
for Petitioners on this 29' day of July, 2022.
Respectfully submitted,
s/ Brandan J. Pratt
Brandan J. Pratt, Esq.
Florida Bar No.: 010745
Zander J. Retamar, Esq.
Florida Bar No.: 1025098
HUTH, PRATT & MILHAUSER
Attorneysfor Therold J. Rathgeb, Jr.
2500 North Military Trail, Ste. 460
Boca Raton, Florida 33431
Telephone: (561) 392-1800
Facsimile: (561) 392-3535
3
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**** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 12/1/2022 4:30:00 PM.**** Filing # 154367255 E-Filed 07/29/2022 05:21:51 PM IN THE CIRCUIT COURT OF THE 17"1 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA IN RE: ESTATE OF CASE NO. PRC-18-0002301(60J) CONSOLIDATED THEROLD JOHN RATHGEB, SR. Deceased. PETER RATHGEB, SANDRA BYRNES, and I 22-00 17 60 4 PATRICIA RATHGEB Petitioners, ADVERSARY PROCEEDING SM.7 R.. .. $. V. ., ' e ,/., FN Aw,L,:" . THEROLD J. RATHGEB, JR., as Personal Representativeand individually, C U B T? @. Respondent. r DECO 12022 Lj./ PETER RATHGEB, SANDRA BYRNES, and By PATRICIA RATHGEB Plaintiffs, V. THEROLD J. RATHGEB, JR., individually And as Trustee of Therold J. Rathgeb Revocable Trust, Defendant. i MOTION TO TAX ATTORNEY'S FEES AND COSTS COMES NOW, Defendant, THEROLD J. RATHGEB, Jr. (hereinafter,"John"), by and through his undersigned counsel, and hereby files a Motion to Tax Attorney's Fees and Costs pursuant to Section 736.1004, Florida Statute, against Plaintiffs. PETER RATHGEB, SANDRA BYRNES, and PATRICIA RATHGEB, and in support thereof avers the following: 1. This is an action relating to the Plaintiffs Verified Complaint e-filed with this Honorable Court on August 28, 2018. The Complaint alleges three separate counts against John 1 **** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 12/1/2022 4:30:00 PM.**** for (1) Cancelation ofDeed, (2) Breach of Fiduciary Duty, and (3) Tortious Interference. 2. Pursuant to Section 736.1004(1)(a), Florida Trust Code, "[i]n all actions for breach of fiduciary duty or challenging the exercise of, or failure to exercise, a trustee's powers... the court shall award taxable costs including chancery actions, including attorney's fees and guardian ad litem fees. Further, Section 736.1004(2) states, "[w]hen awarding taxable costs under this section, including- attorney fees and guardian ad litem fees, the court, in its discretion, may direct payment from a party's interest, if any, in the trust, or enter a judgment satisfied from other property of the party, or both. 3. In this case, Count II of the Plaintiff's Complaint asserts allegations of breach of fiduciaryduty. With respect to Count II for Breach of FiduciaryDuty, John did not owe a duty to the Plaintiffs during the Decedent's lifetime. Section 736.0603(1),Fla. Stat. (2007) provides that while a trust is revocable, the duties of the trustee are owed exclusively to the settlor. Hilgendo,f v. Estate ofColeman,10\ So. 3d 1262, 1263 (Fla. 4th DCA 2016). Importantly, the Trust remained unfunded because the Decedent did not have any assets that would have been poured over into the Trust. The Decedent's assets transferred outside of probate and/or by operation of law. Because the Trust was never funded, John had no duty to administer the Trust and the Plaintiffs cannot have suffered damages for administrationof an unfunded Trust. 4. The Decedent did not have any probate assets, nor is the Trust funded with any assets from the Decedent. 5. John respectfully request this Court tax and apportion attorney's fees and costs associated with defending a breach of fiduciaryduty claim against the Plaintiffs, individually. WHEREFORE, Therold J. Rathgeb, Jr., respectfully requests this Court to enter an Order taxing and apportioning attorney's fees and costs associated with defending claims asserted in the 2 **** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 12/1/2022 4:30:00 PM.**** Plaintiffs Verified Complaint against the Plaintiffs,individually, and award such other and further relief as this Court deems just and proper under the circumstances, including attorneys' fees and costs. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true copy ofthe foregoing was furnished via Florida Courts e-Filing Portal to Adrian Philip Thomas, PA Counsel th for Petitioners on this 29' day of July, 2022. Respectfully submitted, s/ Brandan J. Pratt Brandan J. Pratt, Esq. Florida Bar No.: 010745 Zander J. Retamar, Esq. Florida Bar No.: 1025098 HUTH, PRATT & MILHAUSER Attorneysfor Therold J. Rathgeb, Jr. 2500 North Military Trail, Ste. 460 Boca Raton, Florida 33431 Telephone: (561) 392-1800 Facsimile: (561) 392-3535 3