RICHARD LEE COLONEL, APPELLANT,
v.
MAUREEN E. MEYERSON, APPELLEE
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Colonel appeals a trial court's award of costs to his neighbor Meyerson despite a jury awarding Meyerson no damages in her intentional tort action. The Fifth District affirms the cost award but certifies conflict with Third District precedent regarding the standard for determining the prevailing party in cases where a plaintiff receives no monetary damages.
The Fifth District affirmed the trial court's award of costs to Meyerson as the prevailing party, applying an abuse of discretion standard that allows trial judges discretion to determine from the record which party in fact prevailed on significant issues tried, rather than focusing solely on monetary damages awarded.
[1] A trial court's determination of the prevailing party for the purpose of awarding costs is reviewed for an abuse of discretion.
[2] A party may be considered the prevailing party for the purpose of awarding costs even if awarded no damages.
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 Court adopted a more flexible rule in awarding attorney's fees by allowing the trial judge to determine from the record which party in fact has prevailed on the significant issues tried.”
Establishes the flexible standard for determining prevailing party based on issues prevailed upon, not solely monetary recovery.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceColonel and Meyerson are neighbors in an aviation community. Meyerson sued Colonel alleging he intentionally and maliciously flew his Cessna aircraft …
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PETERSON, E., Senior Judge.
Richard Lee Colonel appeals an award of costs to Maureen E. Meyerson who was determined by the trial court to be the prevailing party for the purpose of awarding those costs although Meyerson was awarded no damages by a jury in her action against Colonel.
Meyerson and Colonel are neighbors in Melrose Landing, an aviation community, but apparently dislike one another. Mey-erson filed a complaint against Colonel alleging that he intentionally and maliciously flew his Cessna aircraft towards her at a low altitude while she was riding her horse. The horse was startled, she fell off and was injured. A jury agreed with Meyerson that Colonel’s action was intentional, but awarded no damages.
The most current precedent involving prevailing party costs in this district also involved hostile neighbors. In Granoff v. Seidle, 915 So. 2d 674 (Fla. 5th DCA 2005), this court applied the abuse of discretion standard of review in deciding whether the trial court properly determined which litigant was the prevailing party. This court adopted that standard, but acknowledged that other districts have adopted a review that focuses on the result obtained. Cf. Zhang v. D.B.R. Asset Mgmt., Inc., 878 So. 2d 386 (Fla. 3d DCA 2004); Smith v. Adler, 596 So. 2d 696 (Fla. 4th DCA 1992). The third district reversed its previous focus in Tacher v. Mathews, 845 So. 2d 332 (Fla. 3d DCA 2003) by adopting the result obtained standard.
The Florida Supreme Court has considered at least two cases involving the prevailing party standard. Those cases involved net verdicts where each of the parties were awarded damages with set-offs. See Prosperi v. Code, Inc., 626 So. 2d 1360 (Fla.1993); Moritz v. Hoyt Enterprises, 604 So. 2d 807 (Fla.1992). The Court adopted a more flexible rule in awarding attorney’s fees by allowing the trial judge to determine from the record which party in fact has prevailed on the significant issues tried. The same concept was followed by this court in Granojf in determining the prevailing party entitled to costs under section 57.041, Florida Statutes (2005). Unfortunately, in the instant case, from the limited record provided we are unable to determine whether the trial court abused its discretion by awarding costs to Meyerson. We must therefore affirm the trial court’s judgment.
Our affirmance is not without acknowledgment of the more simplified approach taken by the third district in Tacher when one need only look to a denial of any damages to a plaintiff in determining that a defendant is entitled to recover costs. We certify conflict with Tacher. AFFIRMED; CONFLICT CERTIFIED.
ORFINGER and TORPY, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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T & W Developers, Inc. v. Salmonsen, 31 So. 3d 298 (Fla. 5th DCA 2010)…rmination of which party prevailed and its award of attorney’s fees is reviewed for an abuse of discretion. See Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., 971 So. 2d 955, 956 (Fla. 5th DCA 2007); Colonel v. Meyerson, 921 So. 2d 690, 691 (Fla. 5th DCA 2006). However, when entitlement rests on the interpretation of a statute or contract, our review is de novo. Hinkley, 971 So. 2d at 956. Section 723.068 states, “[ejxcept as provided in s.723.037, in any proceeding between priva…
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Sorrentino v. River RUN Condo. Ass'n, 925 So. 2d 1060 (Fla. 5th DCA 2006)…ues involved in the litigation. Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807 (Fla.1992). A measure of this test is the result obtained at the close of the case. Granoff v. Seidle, 915 So. 2d 674 (Fla. 5th DCA 2005). See also Colonel v. Meyerson, 921 So. 2d 690 (Fla. 5th DCA 2006). The test is not who was partly at fault in creating the controversy which gave rise to the lawsuit. This is not a case involving complex contract claims where both sides fought to a draw and neither won or lost. See Merchants B…
Authorities Cited
- Moritz v. Hoyt Enters., Inc., 604 So. 2d 807 (Fla. 1992)
- Prosperi v. Code, Inc., 626 So. 2d 1360 (Fla. 1993)
- Granoff v. Seidle, 915 So. 2d 674 (Fla. 5th DCA 2005)
- Smith v. Adler, 596 So. 2d 696 (Fla. 4th DCA 1992)
- Yi Lin Zhang v. D.B.R. Asset Mgmt., Inc., 878 So. 2d 386 (Fla. 3d DCA 2004)
- Jackson v. State, 845 So. 2d 332 (Fla. 3d DCA 2003)
- Tacher v. Mathews, 845 So. 2d 332 (Fla. 3d DCA 2003)