H. LEWIS SCHOETTLE, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, APPELLEE
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The court clarifies that a prevailing party in an appeal is automatically entitled to taxation of costs under Florida Rule of Appellate Procedure 9.400(a), distinguishing between costs (which may be awarded by rule) and attorney's fees (which require substantive law authorization). The Division of Retirement's denial of Schoettle's cost motion was reversed.
A prevailing party is automatically entitled to taxation of enumerated costs under rule 9.400(a), which uses mandatory language ('shall' be taxed). Unlike attorney's fees, which require substantive law authorization, costs may be taxable by statute or rule and are not derivative in nature.
[1] A prevailing party on appeal is automatically entitled to taxation of enumerated costs under rule 9.400(a), Florida Rules of Appellate Procedure.
[2] Unlike attorney's fees, which require authorization by substantive law, the taxation of costs under rule 9.400(a) is not derivative and does not require separate statutor…
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“the language of rule 9.400(a), which is couched differently, automatically entitles the prevailing party to the taxation of certain enumerated costs”
Establishes that rule 9.400(a) creates a mandatory entitlement to costs, distinct from the conditional attorney's fees provision
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSchoettle successfully appealed a decision by the Division of Retirement and subsequently filed a motion to tax costs in the lower court under rule 9.…
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SMITH, Chief Judge.
Subsequent to his successful appeal in Schoettle v. State of Florida, Department of Administration, Division of Retirement, 513 So. 2d 1299 (Fla. 1st DCA 1987), Schoettle filed a motion to tax costs in the lower tribunal, relying on rule 9.400(a), Florida Rules of Appellate Procedure. The Division of Retirement denied the motion, in essence taking the position that the award of costs is derivative in nature and that costs may only be awarded if otherwise authorized by substantive law. Schoettle seeks review of this order and in addition has filed a motion for sanctions, including attorney’s fees, contending that the Division failed to follow the unambig uous requirement-of rule 9.400(a) that costs “shall” be taxed in favor of the prevailing party.
It is true, with respect to attorney’s fees, that appellate attorney’s fees can be awarded in favor of the prevailing party only if authorized by substantive law. Israel v. Lee, 470 So. 2d 861, 862 (Fla. 2nd DCA 1985); rule 9.400(b), Fla.R.App.P. However, the language of rule 9.400(a), which is couched differently, automatically entitles the prevailing party to the taxation of certain enumerated costs. Di Teodoro v. Lazy Dolphin Development Co., 482 So. 2d 625 (Fla. 3d DCA 1983). Costs, we observe, may be taxable by statute or rule. 12 Fla.Jur.2d, Costs, § 5 (1979); Israel, 470 So. 2d at 863.
The Division’s reliance on Caldwell v. Division of Retirement, Florida Department of Administration, 344 So. 2d 923 (Fla. 1st DCA 1977), quashed in part and approved in part, 372 So. 2d 438 (Fla. 1979), is misplaced. In that case, Caldwell was seeking review of an order of the Retirement Commission denying him, among other things, costs and attorney’s fees. This court ruled that Caldwell was not entitled to attorney’s fees and costs as there was no statute authorizing them. The Supreme Court approved this portion of the opinion. However, Caldwell involved an award of costs in a proceeding before the lower tribunal, not an award of appellate costs to which rule 9.400(a) is directed.
Accordingly, while we disagree with the Division’s position that the award of costs under rule 9.400(a) is derivative in nature, and thus grant the motion for review and order payment of costs, we do not find that the Division’s position on this point was so untenable as to subject the Division to sanctions. The cause is REVERSED and REMANDED for proceedings consistent with this opinion.
ERVIN and BOOTH, JJ., concur.
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Procacci Commercial Realty, Inc. v. Dep't OF Health & Rehabilitative Servs., 690 So. 2d 603 (Fla. 1st DCA 1997)…e award of costs is automatic under Florida Rule of Appellate Procedure 9.400(a), which provides that costs "shall be taxed in favor of the prevailing party unless the court orders otherwise.” Schoettle v. State, Dep't of Admin., Div. of Retirement, 522 So. 2d 962 (Fla. 1st DCA 1988). . On October 1, 1996, hearing officers of the Division of Administrative Hearings became "administrative law judges.” Ch. 96-159, § 31, at 199, Laws of Fla. . As recently amended, section 20.19, Florida Statutes (Supp.1996), r…
Authorities Cited
- Caldwell v. Division of Retirement, 372 So. 2d 438 (Fla. 1979)
- Israel v. Dayle T. LEE, 470 So. 2d 861 (Fla. 2d DCA 1985)
- Schoettle v. State, 513 So. 2d 1299 (Fla. 1st DCA 1987)
- Caldwell v. Division of Retirement, 344 So. 2d 923 (Fla. 1st DCA 1977)