MARGARET ANN VELLA, APPELLANT,
v.
STEPHEN JOSEPH VELLA, APPELLEE
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The appellate court denied the appellee's motion for costs because the authority to tax costs rests with the trial court, not the appellate court.
Appellee filed a motion for costs on appeal. The appellate court reviewed its prior ruling in Anderson v. State regarding the taxation of appellate co…
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GLICKSTEIN, Judge.
We affirm the trial court’s order and write solely to address appellee’s motion for costs because we see a large number of similar motions which seek not only attorney’s fees but also costs incurred on appeal.
Florida Rule of Appellate Procedure 9.400(a) expressly provides that the authority to tax costs in favor of the prevailing party is vested in the trial court, not this court, upon motion served within thirty days after issuance of the mandate. Thus, we deny the motion without prejudice to refile same in the trial court.
Unfortunately, there is language in Anderson v. State, 632 So. 2d 132, 133 (Fla. 4th DCA 1994), which must be addressed although we properly reversed the trial court’s premature entry of a judgment for appellate costs prior to the appeal. We inappropriately said:
Without permission from the appellate court, the trial court cannot award appellate costs.
What had become a headnote should now be considered a dead note.
We then went on to quote accurately from Boyer v. Boyer, 588 So. 2d 615, 617 (Fla. 5th DCA 1991), rev. denied, 599 So. 2d 654 (Fla.1992), saying:
These costs may be taxed in favor of the prevailing party, pursuant to Florida Rule of Appellate Procedure 9.400(a), which “explicitly provides for taxation of costs by the lower tribunal on motions heard within 30 days after issuance of the mandate — but not before.” Boyer v. Boyer, 588 So. 2d 615, 617 (Fla. 5th DCA 1991).
Anderson, 632 So. 2d at 133 (emphasis added). In so quoting, we perpetuated an error. The word “heard” should have been “served.” GUNTHER, C.J., and DELL, STONE, WARNER, POLEN, FARMER, KLEIN, PARIENTE, STEVENSON, SHAHOOD and GROSS, JJ., concur.
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Superior Prot., Inc. v. Martinez, 930 So. 2d 859 (Fla. 2d DCA 2006)…suance of the mandate.” Fla. R.App. P. 9.400(a). Thus, the motion for appellate costs cannot be filed in the district court but must be filed in the lower tribunal after jurisdiction has been returned to that body by our mandate. See Vella v. Vella, 691 So. 2d 612 (Fla. 4th DCA 1997). Accordingly, we strike the motion for costs on appeal without prejudice to Mr. Martinez’s right to file a timely motion pursuant to rule 9.400(a) in the circuit court. Affirmed. WHATLEY and CASANUEVA, JJ., Concur.…
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Garcia v. Ileana Collazo, 178 So. 3d 429 (Fla. 3d DCA 2015)…e filed in the lower tribunal after jurisdiction has been returned to that body by our mandate. “Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.” Fla, R. App. P. 9.400(a); See Vella v. Vella, 691 So. 2d 612 (Fla. 4th DCA 1997). Accordingly, we strike Collazo’s request for costs on appeal, which she first filed in this Court, without prejudice to Collazo’s right to file a" timely motion pursuant to rule 9.400(a) in the circuit court, noting that' the ti…
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Authorities Cited
- Anderson v. State, 632 So. 2d 132 (Fla. 4th DCA 1994)
- Boyer v. Boyer, 588 So. 2d 615 (Fla. 5th DCA 1991)