JAN HALL AND EUGENE KIERNAN AND THE CLASS, APPELLANTS,
v.
HUMANA HOSPITAL DAYTONA BEACH, ETC., ET AL., APPELLEES
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Jan Hall and Eugene Kiernan appealed a post-judgment order denying their award of costs against Humana Hospital Daytona Beach. The court affirmed the denial, holding that because Humana was determined to be the prevailing party in the underlying lawsuit, Hall and Kiernan could not recover costs under section 57.041.
The court held that appellants are bound by the prior determination that Humana is the prevailing party, and therefore cannot recover costs under section 57.041. The court declined to distinguish between the prevailing party determination for attorney fees versus costs, holding that the two statutes must operate under the same prevailing party principles.
[1] A party seeking an award of costs must be determined to be the "prevailing" party in the lawsuit.
[2] A prior determination of a "prevailing party" for attorney fees under section 57.105(2) is binding for an award of costs under section 57.041.
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“In order to be entitled to an award of attorney fees or costs under the statute, the moving party must be determined to be the "prevailing" party in the lawsuit.”
Establishes the legal requirement that a party claiming costs must be the prevailing party in the underlying lawsuit.
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Join FLexlaw to unlock all legal intelligenceAppellants Hall and Kiernan moved for an award of costs relating to a completed lawsuit, seeking the award as the prevailing party under section 57.04…
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Jan Hall, Eugene Kiernan and The Class appeal from a post-judgment order which denied them an award of costs.1 We find this appeal has no merit, having reviewed the initial brief filed by appellants. Accordingly we elect to deal with it by way of summary disposition pursuant to Florida Rule of Appellate Procedure 9.815(a). We affirm.
In this proceeding, appellants moved for an award of costs relating to a lawsuit which had been completed below. They sought the award pursuant to section 57.0412 on the ground that they were the “prevailing”3 party. In order to be entitled to an award of attorney fees or costs under the statute, the moving party must be determined to be the “prevailing” party in the lawsuit. Schneider v. DiPaola, 715 So. 2d 284 (Fla. 2d DCA 1998); State Farm Mutual Automobile Ins. Co. v. Marico, 695 So. 2d 874, 875 (Fla. 2d DCA 1997); Wright v. Caruana, 640 So. 2d 197 (Fla. 3d DCA 1994); Nemours Foundation v. Gauldin, 601 So. 2d 574, 576 (Fla. 5th DCA 1992).
The problem for appellants in this appeal is that the opposing party, Humana Hospital Daytona Beach, was determined to be the “prevailing party” when the trial court denied appellant’s motion for an award of attorney fees, pursuant to section 57.105(2). Appellants took an untimely appeal from that order, and this court dismissed for lack of jurisdiction.4 While that appeal was still pending, appellants moved for and were denied an award of costs under section 57.041, which is the subject of this appeal.
As we analyze this case, when the first appeal was dismissed, the identification of Humana as the prevailing party in the lawsuit below became fixed, final and binding on appellants. They point out that the prior determination related to an award of attorney fees and not costs. However, we decline to indulge in the theoretical possibility that one party could be determined to be “prevailing” for purposes of an award of attorney fees and the other, for an award of costs under the two related statutes. Surely they must be one and the same. Accordingly, appellants are bound by the prior ruling. See State Department of Health and Rehabilitative Services v. Skinner, 649 So. 2d 280 (Fla. 2d DCA 1995); Reliable Reprographics Blueprint and Supply, Inc. v. Florida Mango Office Park, Inc., 645 So. 2d 1040 (Fla. 4th DCA 1994); In Re Lindsay’s Estate, 207 So. 2d 736 (Fla. 4th DCA 1968).
AFFIRMED.
GOSHORN and HARRIS, JJ., concur. . Fla. R.App. P. 9.300(b).
. Section 57.041 provides:
57.041 Costs; recovery from losing party.—
(1) The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.
. The "party recovering judgment” under section 57.041, and the "prevailing party” under section 57.105 are governed under the same principles. Folta v. Bolton, 493 So. 2d 440, 442 (Fla.1986).
Arscott v. Humana Hospital Daytona Beach, Case No. 98-1560.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Folta v. Joseph Bolton, M.D., 493 So. 2d 440 (Fla. 1986)
- State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874 (Fla. 2d DCA 1997)
- Parvin Wright v. Caruana, 640 So. 2d 197 (Fla. 3d DCA 1994)
- Reliable Reprographics Blueprint & Supply, Inc. v. Fla. Mango Off. Park, Inc., 645 So. 2d 1040 (Fla. 4th DCA 1994)
- In re Est. of Philip E. Lindsay, 207 So. 2d 736 (Fla. 4th DCA 1968)
- Schneider v. DiPAOLA, 715 So. 2d 284 (Fla. 2d DCA 1998)
- The Nemours Found. v. Gauldin, 601 So. 2d 574 (Fla. 5th DCA 1992)
- State v. Skinner, 649 So. 2d 280 (Fla. 2d DCA 1995)