OKEELANTA CORPORATION, OSCEOLA FARMS COMPANY, AND ATLANTIC SUGAR ASSOCIATION, INC., APPELLANTS/CROSS-APPELLEES,
v.
BERNARD BYGRAVE, ET AL., APPELLEES/CROSS-APPELLANTS; UNITED STATES SUGAR CORPORATION, APPELLANT/CROSS-APPELLEE, V. BERNARD BYGRAVE, ET AL., APPELLEES/CROSS-APPELLANTS

Fla. 4th DCA | 1997-07-16
Nos. 92-2773, 92-2792 and 92-2807
POLEN, J., concurs., PARIENTE, J., concurs specially with opinion.
727 So. 2d 950 Florida District Court of Appeal, Fourth District (1997) Positive Treatment
Cited by 3 cases

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Synopsis

Sugar cane growers appealed a $50 million summary judgment against them in a wage class action. The appellate court reversed for further proceedings, and the growers then moved to tax appellate costs. The court reversed the cost judgment, holding that costs cannot be assessed until the conclusion of the case when it is known which class members might be liable.


Holding

The appellate court reversed the cost judgment, holding that costs cannot be assessed until the conclusion of the case because absent class members may not be liable for costs and it is impossible to identify who, besides the class representatives, may be judgment debtors. The court directed that the cost judgment be deferred until the conclusion of the underlying case.


Headnotes

[1] Appellate courts have discretion regarding the taxation of appellate costs, notwithstanding the general rule favoring the prevailing party.

[2] Motions for assessment of appellate costs are initially made to the trial court, not the appellate court.

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Key Quotes

“A judgment cannot be entered without knowing against whom it may operate. At the present time, an impediment to entering a cost judgment is the inability to identify who, besides the class representatives, may be judgment debtors.”

Establishes the core rationale for reversing the cost judgment—the impossibility of determining liability among unnamed class members.

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Facts & Procedural History

Sugar cane workers sued various sugar companies in a class action for back wages. The trial court entered a final summary judgment against the growers…

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Opinion of the Court
WARNER, Judge.

WARNER, Judge.

We deny rehearing but withdraw our prior opinion on the motion to review orders taxing costs and publish the following in its place.

After our opinion was rendered in this appeal, four of the five appellants moved to tax costs pursuant to Florida Rule of Appel late Procedure 9.400(a).

The trial court entered judgments in favor of each appellant for their respective taxable appellate costs together with interest at the rate of 10% per year. The appellees contend that because this court remanded for further proceedings, there is no “prevailing party” for purposes of taxation of costs. We do not reach this issue because there is some degree of discretion afforded to this court on the issue of appellate costs. The rule provides for the taxation of costs in favor of the prevailing party unless the court orders otherwise. See Fla. R.App. P. 9.400(a). “The court” means the appellate court. See Fla. R.App. P. 9.020(c); American Med. Int’l v. Scheller, 484 So. 2d 593 (Fla. 4th DCA 1985).

The first time we have the opportunity to address the taxation of costs is by motion for review of the order taxing appellate costs, as the motion for assessment of such costs is made to the trial court, not the appellate court. See Stearman v. Intergraph Corp., 585 So. 2d 466 (Fla. 2d DCA 1991).

In the instant case, sugar cane workers sued various sugar companies in a class action, claiming back wages. After the entry of a final summary judgment against the growers approximating fifty million dollars, the growers appealed to this court, which reversed the summary judgment for further proceedings. See Okeelanta Corp. v. Bygrave, 660 So. 2d 743 (Fla. 4th DCA 1995).

Of the five growers, four (Okeelanta, Osceola Farms, Atlantic Sugar, and U.S. Sugar) pursued their motions to tax costs through a hearing and judgment. Costs were taxed in favor of Okeelanta, Osceola Farms, and Atlantic Sugar in the amount of $787,505 plus interest. Costs were taxed in favor of U.S. Sugar in the amount of $139,656 plus interest.1 The other appellant, Sugar Cane Growers, agreed to defer hearings on its motion seeking a cost judgment until there was an ultimate prevailing party in the underlying case.

The appellees correctly argue that at this point in the proceedings, absent members of the class may not be liable for costs. See Wright v. Schock, 742 F. 2d 541, 545 (9th Cir.1984); 3 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 14.02 (3d ed.1992). A judgment cannot be entered without knowing against whom it may operate. At the present time, an impediment to entering a cost judgment is the inability to identify who, besides the class representatives, may be judgment debtors.

Therefore, because it has not been established which members of the class might ultimately be liable for these costs, we reverse the order and direct that it be deferred until the conclusion of the case.

Finally, U.S. Sugar complains that the trial court erred in failing to award its costs of securing a letter of credit, even though the trial court had awarded similar costs to the other sugar cane growers. Because we have reversed the order taxing costs, U.S. Sugar will have an opportunity at the close of the case to present evidence of whether the charges for obtaining the credit were necessary and reasonable. Assuming they were, then such costs may be taxable. See Melvin v. West, 120 So. 2d 233 (Fla. 2d DCA 1960); § 57.071(1), Fla. Stat. (1995).

POLEN, J., concurs.

PARIENTE, J., concurs specially with opinion.

. The bulk of the costs were the premiums on the supersedeas bond the defendants were required to secure to prevent execution on the judgment.

Concurrence
PARIENTE, Judge,

PARIENTE, Judge,

concurring specially.

I concur in the reversal of the order taxing costs. I agree that the language of the rule which states “unless the court orders otherwise” vests the appellate court with discretion not to require immediate execution. However, I would adopt a broader interpretation of our discretion and the definition of “prevailing party” under the rule. For the reasons expressed in my dissent in Stringer v. Katzell, 695 So. 2d 369 (Fla. 4th DCA 1997) (Pariente, J., dissenting), I would follow the principles involving appellate attorney’s fees and condition an award of appellate costs on the party ultimately prevailing in the underlying litigation.


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