MORRY WINGOLD AND W AND G HOLDINGS LIMITED, APPELLANTS,
v.
BERNARD H. HOROWITZ ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
This case addresses whether a trial court properly ordered plaintiffs to pay receiver's fees and attorney's fees after having already taxed those same costs against defendants in a prior order. The Florida District Court of Appeal reversed, holding that once costs were taxed against defendants, they cannot subsequently be reassessed against plaintiffs.
The court reversed, holding that the trial court erred in ordering plaintiffs to pay the fees. Once the court had taxed the receiver's fees and costs and attorney's fees against the defendants in the December 14, 1978 order, it could not subsequently assess these same costs against the plaintiffs.
[1] A trial court's order taxing receiver's fees and costs against a party is final and not subject to collateral attack when no appeal is taken from that order.
[2] A trial court cannot retroactively tax receiver's fees and costs against a party when those fees and costs have already been taxed against another party in a prior, unapp…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In its order on post-judgment motions rendered on December 14, 1978, the trial court taxed the receiver's fees and costs and the receiver's attorney's fees against the defendants. It would appear that the defendants suggest on this appeal that the trial court, in that order, might properly have taxed such costs against the plaintiffs or have assessed them against the fund or property in receivership. While the trial court could have done these things, the simple fact remains that it did not.”
Establishes that the trial court made a clear choice to tax costs against defendants, and cannot later change that decision.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA final judgment regarding commercial transactions and mortgage default by defendant Horowitz was entered in November 1971. The Supreme Court of Flori…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Taxing Costs cases and more on FLexlaw
VANN, HAROLD R. (Ret.), Associate Judge.
This case has a long history and arises out of a final judgment entered in November of 1971, which concerned certain commercial transactions and primarily the default in the payment of a mortgage by the defendant Horowitz, an appellee herein. Following an appeal of the final judgment to this court (274 So. 2d 591), the Supreme Court of Florida granted certiorari and reversed the final judgment (292 So. 2d 585, 587), resulting an amended judgment of November 14, 1974. Some four years later, on December 14,1978, the trial court entered an order on post-judgment motions, striking paragraph 17 of the prior order and substituting therefor an amended paragraph 17, finding certain monies due and owing to the plaintiffs, the appellants herein; acknowledging a substituted receiver for the assets collectively pledged by the defendants; and providing a date for the sale of the assets, unless the defendants paid in full. Amended paragraph 17(b) taxed the receiver’s fees and costs and the receiver’s attorney’s fees (previously adjudicated in .December of 1971) against the defendants. Because the defendants did not pay the amounts due by the specified date, the sale of the assets took place, and the receiver’s report was filed with the trial court shortly thereafter. Then, on April 2, 1979, the trial court entered the order here appealed, in which the receiver and the receiver’s attorney were awarded additional fees; these fees were to be paid by the plaintiffs. This appeal followed, urging that the trial court erred in ordering the plaintiffs to pay these fees. We agree and reverse.
In its order on post-judgment motions rendered on December 14, 1978, the trial court taxed the receiver’s fees and costs and the receiver’s attorney’s fees against the defendants. It would appear that the defendants suggest on this appeal that the trial court, in that order, might properly have taxed such costs against the plaintiffs or have assessed them against the fund or property in receivership. While the trial court could have done these things,1 the simple fact remains that it did not. Rather, it taxed the receiver’s costs and fees and the receiver’s attorney’s fees against the defendants. No appeal has been taken from the order entered on the post-judgment motions and any speculation on the correctness of that order should not be indulged in at this juncture.
An examination of amended paragraph 17(h) suggests that the court might well have sought to assess the costs of the receivership against certain property in receivership, to-wit:
“Pending the sale and the confirmation of sale, the Receiver shall continue to hold that certain mortgage and note dated 2/17/71, from Nassau Oaklands Limited to W & G Holdings Limited, as security for the payment of the costs and attorneys’ fees of the Receivership. Upon the confirmation of sale and the payment of costs and attorneys’ fees, the Receiver shall cause the assignment of said mortgage to the Plaintiffs’ nominee.”
The fact remains, however, that the note and mortgage referred to above have since been assigned to the plaintiffs. Thus, while the court might well have been able, originally, to tax costs against the plaintiffs, it cannot do so now, having already taxed them against the defendants.2
Reversed and remanded.
. Deauville Corporation v. Blount, 160 Fla. 286, 34 So. 2d 537 (1948).
. Assuming that the court ordered sale of the property in receivership was for “less than the property should reasonably be expected to sell for” an appeal could arguably have been taken from the receiver’s report of sale. See 27 Fla. Jur.Receivers § 47. No such appeal, however, was timely taken. Thus, it is submitted that no equitable considerations would mandate the taxing of costs against appellant after the appellate period expired.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Marine Midland Bank Cent. v. Cote, 384 So. 2d 658 (Fla. 5th DCA 1980)…attorney’s fees against the bank and under the general dictates of Airvac, he is foreclosed from bringing up the matter for reconsideration; because he failed to speak up in the first appeal, he must forever hold his peace. See Wingold v. Horowitz, 382 So. 2d 377 (Fla. 3d DCA 1980). The amended order awarding attorney’s fees to Altes from Marine Bank is reversed. In all other respects, the Amended Order and Final Judgment is affirmed. AFFIRMED IN PART; REVERSED IN PART. COBB and UPCHURCH, JJ., concur. .…
Authorities Cited
- Morry Wingold & W & G Holdings Ltd. v. Horowitz, 292 So. 2d 585 (Fla. 1974)
- Deauville Corp. v. IVY T. Blount, 160 Fla. 286 (Fla. 1948)
- Morry Wingold v. Horowitz, 274 So. 2d 591 (Fla. 3d DCA 1973)