DONALD REHMAN, APPELLANT,
v.
ECC INTERNATIONAL CORP., ETC., ET AL., APPELLEES

Fla. 5th DCA | 1998-01-09
No. 97-409
HARRIS and ANTOON, JJ., concur.
707 So. 2d 752 Florida District Court of Appeal, Fifth District (1998) Positive Treatment
Cited by 2 cases

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.

Synopsis

Rehman appealed orders denying lost interest on a cash bond posted pending appeal and attempting to nullify a prior award of appellate attorney's fees. The Fifth District Court of Appeal affirmed both rulings, holding that lost interest on cash bonds is not a recoverable taxable cost and that the court lacked jurisdiction to reconsider a prior attorney's fee award based on frivolousness.


Holding

Lost interest on a cash bond does not constitute a recoverable taxable cost because there is no express authorization in the rules to treat theoretical lost interest on a cash bond as a taxable cost, and the court lacks jurisdiction to reconsider an appellate award of attorney's fees more than one year after the mandate issued.


Headnotes

[1] Lost interest on a cash bond posted pending appeal is not a taxable cost.

[2] Appellate courts lack jurisdiction to reconsider and recede from prior awards of attorney's fees after the mandate has issued more than one year prior.

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Key Quotes

“Without an express authorization in the rules to treat theoretical lost interest on a cash bond posted by an appellant, we agree it should not be a taxable cost.”

Establishes that lost interest on cash bonds is not a recoverable taxable cost absent express authorization in the appellate rules.

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Facts & Procedural History

Rehman posted a cash bond pending appeal and sought to recover the interest lost on that bond as a taxable cost. Additionally, Rehman attempted to cha…

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Opinion of the Court
W. SHARP, Judge.

ON MOTIONS FOR APPELLATE REVIEW OF LOWER TRIBUNAL’S ORDER DISALLOWING LOST INTEREST ON CASH BOND POSTED ON APPEAL

and

FOR APPELLATE REVIEW AND FOR NULLIFICATION OF PREVIOUS AWARD OF APPELLATE ATTORNEY’S FEES AND COSTS

W. SHARP, Judge.

Rehman has filed motions seeking review of an order rendered by the trial court regarding costs and an order awarding attorney’s fees against Rehman. The attorney’s fee award was made pursuant to this court’s mandate in an earlier appeal (Appeal No. 95-1758). The cost-award order was rendered after this court reversed a decision of the trial court, which had awarded attorney’s fees and costs to the appellee, ECC International Corporation, 698 So. 2d 921 (Fla. 5th DCA 1998) (Appeal No. 97-409). We have jurisdiction. See Fla. R.App. P. 9.400(c).

In appeal number 97-409, the trial court ruled that Rehman was not entitled to recover interest lost on a cash bond, which Reh-man had posted pending the appeal. Florida Rule of Appellate Procedure 9.400(a) provides a list of costs that can be taxed in favor of the prevailing party, in the discretion of the trial court. It provides:

Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include:
(1) fees for filing and service of process;

(2) charges for preparation of the record;

(3) bond premiums; and (f) other costs permitted by law.

Rehman argues that lost interest on a cash bond is analogous to a bond premium, which is a recoverable cost. See Lone Star Industries, Inc. v. Liberty Mutual Ins. Co., 688 So. 2d 950 (Fla. 3d DCA), rev. denied, 698 So. 2d 889 (Fla.1997). However, lost interest does not appear to be recoverable. See Baya v. Revitz, 368 So. 2d 44 (Fla. 3d DCA 1978). Courts do not allow as taxable costs interest which theoretically accrued on other kinds of costs expended by a party to an appeal, such as the payments for transcripts, depositions, exhibits and the like. Without an express authorization in the rules to treat theoretical lost interest on a cash bond posted by an appellant, we agree it should not be a taxable cost.

In addition, Rehman seeks to nullify this court’s award of appellate attorney’s fees in appeal number 95-1758, which was granted on April 17, 1996. Rehman argues that the present decision rendered by this court in appeal number 97-409 held that ECC was not entitled to attorney’s fees under the Whistleblower Act and therefore ECC should not have been entitled to an award of attorney’s fees in the earlier appeal, Case No. 95-1758. Aside from the fact that we lack jurisdiction to reconsider and recede from the earlier award of attorney’s fees, since the mandate in that case issued more than one year ago,1 it appears that the prior award was based not on the Whistleblower Act, but on the fact that the prior appeal was frivolous.

, Thus, the award of appellate attorney’s fees in that case has nothing to do with the disallowment of attorney’s fees in this appeal (97-409).

Motions for Review DENIED.

HARRIS and ANTOON, JJ., concur. . See Judges of Eleventh Judicial Circuit In and For Dade County v. Janovitz, 635 So. 2d 19 (Fla.1994); State Farm Mut. Auto. Ins. Co. v. Judges of Dist. Court of Appeal, Fifth Dist., 405 So. 2d 980 (Fla.1981); Olde MacDonald's Farms Inns Corp. v. McDill Columbus Corp., 476 So. 2d 315 (Fla. 5th DCA 1985).

. See § 57.105, Fla. Stat; Department of Revenue on Behalf of Glover v. Smatt, 679 So. 2d 1191 (Fla. 5th DCA 1996); Brahmbhatt v. Allstate Indemn. Co., 655 So. 2d 1264 (Fla. 4th DCA 1995); Sykes v. St. Andrews School, 625 So. 2d 1317 (Fla. 4th DCA 1993); Zibell v. Chan, 535 So. 2d 708 (Fla. 5th DCA 1988).


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Citator

Cited By

  • Plapinger v. E. States Props. Realty Corp., 716 So. 2d 315 (Fla. 5th DCA 1998)
    …, was $8,250.00. Under the so-called “American Rule,” attorneys’ fees may only be awarded by contract or by statute. Dade County v. Pena, 664 So. 2d 959 (Fla.1995); Rehman v. ECC International Corp., 698 So. 2d 921 (Fla. 5th DCA 1997), rev. denied, 707 So. 2d 752 (1998); Florida Life Insurance Co. v. Fickes, 613 So. 2d 501 (Fla. 5th DCA 1993). Here, Realty sought recovery for three contracts — one written contract and two oral contracts. All pertained to procuring tenants for Eastern’s shopping centers. The…

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