EVELYN MILLER AND HOWARD MILLER, APPELLANTS,
v.
COLONIAL BAKING COMPANY OF ALABAMA AND AMERICAN MOTORISTS INSURANCE COMPANY, 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.
The trial court granted defendants' motion for mistrial when plaintiffs' counsel had lunch with jurors during trial, and then awarded costs and attorney's fees against plaintiffs' counsel. The appellate court reversed, holding that costs and attorney's fees could not be awarded absent statutory authorization, though contempt proceedings remained available.
The court reversed the award of costs and attorney's fees because no statutory authority existed for such an award. Costs may only be taxed after final determination of a cause, not after a mistrial, and attorney's fees may be awarded only under three narrow circumstances: by contract, by constitutional or legislative enactment, or for services creating a fund for the court. None applied here.
[1] Costs are not awarded except where authorized by statute or agreement of the parties and are taxable only pursuant to statute or rule.
[2] Costs may be taxed only after the final determination of a cause, not after a mistrial.
Previewing 2 of 5 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“it is well established that costs are not awarded except where authorized by statute or agreement of the parties and that such costs are taxable only pursuant to statute or rule”
Establishes the foundational principle that costs require statutory authorization
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring a personal injury trial, defendants' counsel observed plaintiffs' attorney and plaintiffs' expert witness having lunch with two female jurors. …
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 Statutory Authority For Costs cases and more on FLexlaw
THOMPSON, Judge.
This is an appeal from an Order awarding attorney’s fees and costs to the appellees. We reverse.
A jury was selected to try a personal injury action brought by the appellants (“the plaintiffs”) against the appellees (“the defendants”). The trial began and later a recess was taken for lunch. After this recess, the defendants’ counsel moved for a mistrial on the basis that two of the secretaries from his office had just seen the plaintiffs’ attorney, and the plaintiffs’ expert witness, having lunch with two female jurors. The court asked the plaintiffs’ attorney to respond, and he did so by acknowledging that he and his expert witness did have lunch with two jurors, due to crowded restaurant conditions. However, he said that they did not discuss the case at all. The trial court then properly granted the motion for mistrial, in view of the improper and unethical conduct of the plaintiffs’ attorney.
Before a new trial began, the defendants’ counsel filed a motion to assess costs and attorney’s fees against the plaintiffs and/or their attorney, based on the preceding facts. A hearing was held and the motion was granted insofar as costs and attorney’s fees were to be borne only by the plaintiffs’ attorney.
Generally, “[i]t is well established that costs are not awarded except where authorized by statute or agreement of the parties and that such costs are taxable only pursuant to statute or rule.” Sears, Roebuck & Co. v. Richardson, 343 So. 2d 678, 679 (Fla. 1st DCA 1977). In the present case, we can find no statutory authority for the award of costs. Additionally, the taxation of costs provided for in § 57.021, Fla. Stat. (1979), may not take place after a mistrial. See Richardson, 343 So. 2d at 679-80. Instead, costs may be taxed only after the final determination of a cause. Id.; Brinker v. Ludlow, 379 So. 2d 999, 1001-02 (Fla.3d DCA 1980).
As for attorney’s fees, “[i]t is an elemental principle of law in this State that attorney’s fees may be awarded ... only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.” Kittel v. Kittel, 210 So. 2d 1, 3 (Fla.1968).* Circumstances (1) and (3) are obviously not present, and we can find no statutory authority for the award of attorney’s fees herein.
Although the court might have been authorized, through appropriate proceedings, to impose a fine or sanctions against the plaintiffs’ attorney for indirect contempt of court, it was not authorized to assess costs and attorney’s fees against him for his actions which resulted in the mistrial. We are therefore compelled to reverse the trial court’s Order, without prejudice to the institution of contempt proceedings and without prejudice to the defendants to move, at the conclusion of this case, to assess against the plaintiffs those costs occasioned by the mistrial. See Richardson, 343 So. 2d at 679-80.
REVERSED.
ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur. *
Of course, there are “exceptions” to the rule stated in Kittel. However, none of those “exceptions” are present. See Sheridan v. Greenberg, 391 So. 2d 234, 235, 237-38 (Fla.3d DCA 1980) (generally discussing the recovery of attorney’s fees as an element of damages in various cases and circumstances). In this same respect, see Glusman v. Lieberman, 285 So. 2d 29, 31-32 (Fla. 4th DCA 1973). Additionally, attorney’s fees may be taxed as costs if so authorized by contract or statute. See Codomo v. Emanuel, 91 So. 2d 653, 655 (Fla.1956). See also Allen v. Estate of Dutton, 384 So. 2d 171, 174 (Fla. 5th DCA 1980), rev. den. 392 So. 2d 1373 (Fla.1980). Lastly, attorney’s fees may be allowed where a partner is forced to bring suit for dissolution of the partnership and an accounting, A. J. Richey Corp. v. Garvey, 132 Fla. 874, 182 So. 216, 219 (1938), or where a trustee defends a trust. Smith v. Massachusetts Mut. Life Ins. Co., 116 Fla. 390, 156 So. 498, 509 (1934). Again, none of these “exceptions” are present.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002)…d District Court of Appeal, which expressly and directly conflicts with the decision of the Second District Court of Appeal in Israel v. Lee, 470 So. 2d 861 (Fla. 2d DCA 1985), and the First District Court of Appeal in Miller v. Colonial Baking Co., 402 So. 2d 1365 (Fla. 1st DCA 1981). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The conflict issue presented in this case is whether a trial court possesses the inherent authority to assess attorneys’ fees as a sanction against an attorney for the att…
-
Baxter's Asphalt & Concrete, Inc. v. Liberty Cnty., 406 So. 2d 461 (Fla. 1st DCA 1981)…may be limited as justice requires. . The above rule is an exception to the general rule that attorney’s fees are not otherwise recoverable as costs in the absence of statutory authority or contractual agreement. See Miller v. Colonial Baking Co., 402 So. 2d 1365 (Fla. 1st DCA 1981). . The limited recovery we now allow on rehearing is monetary relief incidental to a court’s equitable jurisdiction. See Circle Finance Co. v. Peacock, 399 So. 2d 81 (Fla. 1st DCA 1981). A remedy that affords only partial relief…
-
Israel v. Dayle T. LEE, 470 So. 2d 861 (Fla. 2d DCA 1985)…rney’s fees may be awarded only where authorized by either a contract or by a statute or where the attorney’s services create or bring a fund or other property into the court. Kittel v. Kittel, 210 So. 2d 1 (Fla.1967); Miller v. Colonial Baking Co., 402 So. 2d 1365 (Fla. 1st DCA 1981); and Polk County v. Deaton, 352 So. 2d 571 (Fla. 2d DCA 1977). None of these circumstances exist with regard to Israel; no contract exists, no fund was created, and no statutory authority supports such an award. Accordingly, desp…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Carola D. Allen v. Est. of Ellen C. Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980)
- Kittel v. Anne B. Kittel, 210 So. 2d 1 (Fla. 1967)
- Smith v. Mass. Mut. Life Ins. Co., 116 Fla. 390 (Fla. 1934)
- Glusman v. Lieberman, 285 So. 2d 29 (Fla. 4th DCA 1973)
- A. J. Richey Corp. v. Garvey, 132 Fla. 602 (Fla. 1938)
- Smith v. Gifford, 91 So. 2d 653 (Fla. 1956)
- Codomo v. Obert Emanuel, 91 So. 2d 653 (Fla. 1956)
- Brinker v. Ludlow, 379 So. 2d 999 (Fla. 3d DCA 1980)
- Sheridan v. Greenberg, 391 So. 2d 234 (Fla. 3d DCA 1980)
- Erwin Hunter v. State, 391 So. 2d 234 (Fla. 3d DCA 1980)