ELEANOR MACK AND ROBERT MACK, SR., HER HUSBAND, APPELLANTS,
v.
MANUAL G. GARCIA, M.D., ET AL., APPELLEES
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The prevailing party in litigation is entitled to recover costs incurred in all trials where they prevailed, not just the final one.
Plaintiffs prevailed in two separate trials against the defendant. The trial court awarded costs for the second trial but refused costs for the first …
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WALDEN, Judge.
The Macks sued Dr. Garcia for medical malpractice and prevailed. However, the Macks were dissatisfied with the amount of the award and successfully appealed to this court so as to obtain a reversal and remand for a new trial. Mack v. Garcia, 433 So. 2d 17 (Fla. 4th DCA 1983).
Upon new trial the Macks were again successful and obtained a money judgment against Dr. Garcia more to their liking. The Macks then moved to tax costs against Dr. Garcia for costs incurred in the first trial and in the second trial.
The trial court taxed costs for the second trial but refused to do so as concerns the first trial. The Macks appeal. We reverse and remand with instructions.
It is to be remembered and emphasized that the Macks have prevailed at every step in this litigation.
Section 57.041, Florida Statutes (1983) is the statutory basis for the prevailing party recovering costs from the losing party. Its application was discussed in Gordon International Adv. v. Charlotte County L. & T. Co., 170 So. 2d 59, 61 (Fla. 3d DCA 1964), as follows:
Costs, as a compensatory monetary award to the winning party, is a judicial attempt to make the winning party as whole as he was prior to the litigation, (sic) The theory being that the prevailing party should not lose anything, at least financially, by virtue of having established the righteousness of his claim.
As we see it, under the circumstances here, the Macks are entitled to their lawful costs expended in the first trial and in the second trial in order to be made whole.
Upon remand we respectfully instruct that the trial court review the Macks’ claimed costs from both trials and award a cost judgment accordingly.
Reversed and remanded with instructions.
GLICKSTEIN and HURLEY, JJ., concur.
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Otis Elevator Co. v. Bryan, 489 So. 2d 1189 (Fla. 1st DCA 1986)…re plaintiffs obtained jury verdict but appealed the amount of damages and won a new trial on damages, held plaintiff entitled to taxation of costs in first trial as well as second trial). For a holding similar to Thornburg, see also Mack v. Garcia, 453 So. 2d 465 (Fla. 4th DCA 1984). As stated in Gordon International Advertising, Inc. v. Charlotte County Land & Title Co., 170 So. 2d 59 (Fla. 3d DCA 1965): “Costs, a compensatory monetary award to the winning party, is a judicial attempt to make the winning p…
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Norman v. Mandarin Emergency Care Ctr., Inc., 490 So. 2d 76 (Fla. 1st DCA 1986)…s advice. However, public policy dictates that a patient does not have an obligation or duty to determine whether an injury is being properly treated. Mack v. Garcia, 433 So. 2d 17 (Fla. 4th DCA 1983), rev. den., 440 So. 2d 352, appeal after remand, 453 So. 2d 465.2 Under the circumstances of this case, the jury could not have found that Norman’s actions in this regard constituted comparative negligence. [*79] Every other basis for the jury’s finding of comparative negligence having been eliminated, there rem…
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The Upjohn Co. v. Anne Marie MacMURDO, 536 So. 2d 337 (Fla. 4th DCA 1988)…a physician. Any other rule would offend common sense by requiring the patient to be the judge of a physician’s professional competence. Mack v. Garcia, 433 So. 2d 17, 18 (Fla. 4th DCA), rev. denied, 440 So. 2d 352 (Fla. 1983), appeal after remand, 453 So. 2d 465 (Fla. 4th DCA 1984). In Norman v. Mandarin Emergency Care Center, Inc., 490 So. 2d 76 (Fla. 1st DCA 1986), the court rejected the argument that a patient could be contributorily negligent by failing to seek other medical advice (i.e., a second medi…
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- Gordon Int'l Advertising, Inc. v. Charlotte Cnty. Land & Title Co., 170 So. 2d 59 (Fla. 3d DCA 1964)
- Mack v. Manual G. Garcia, M.D., 433 So. 2d 17 (Fla. 4th DCA 1983)