GEORGE ABRAMS, APPELLANT,
v.
LELA B. GRESHAM AND GRESHAM'S GARAGE, INC., A FLORIDA CORPORATION, APPELLEES
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George Abrams appealed a directed verdict in a negligence action and was required to pay the lower court's cost judgment before perfecting his appeal. After this Court reversed and remanded for a new trial, Abrams sought to recover the $107.90 cost payment as part of his appellate costs, but the trial court disallowed it. The Court holds that such prerequisite payments to perfect an appeal constitute recoverable appellate costs.
The Court holds that such a prerequisite cost payment should be recognized and allowed as an appellate cost, following the precedent established in King v. Weis-Patterson Lumber Co. The trial court erred in disallowing the $107.90 payment.
“in a similar situation the Supreme Court treated such a payment as an appeal cost and allowed it in taxing costs following appeal”
Establishes the controlling precedent from King v. Weis-Patterson Lumber Co. for allowing prerequisite cost payments as appellate costs
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Join FLexlaw to unlock all legal intelligenceAbrams filed an action at law against Lela B. Gresham and Gresham's Garage, Inc. A jury trial resulted in a directed verdict for the defendants. Befor…
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A petition was presented under F.A.R. 3.16(c), 31 F.S.A., to review a judgment for costs. The petitioner had filed an action at law. The case came on for trial before a jury. A verdict was directed for defendants, and plaintiff appealed. As required by F.A.R. 3.2(f), prior to talcing the appeal plaintiff paid a cost judgment which had been entered by the trial court. We reversed the judgment entered on the directed verdict, and remanded the cause for a new trial (Abrams v. Gresham, Fla. App.1961, 131 So.2d 207). The plaintiff-appellant moved in the trial court to have the appellate costs taxed, pursuant to F.A. R. 3.16(b), and submitted an affidavit listing the following:
“Filing Fees $28.50 Satisfaction of Defendants’
Cost Judgment 107.90
Original and copy of trial transcript 129.20
Cost of Certifying Record 8.50
Total $274.10”
Of the foregoing, the court disallowed thé item of $107.90 representing the amount paid to satisfy the cost judgment in the trial court prior to appeal. Petitioner contends that amount should have been recognized and allowed as a cost of his appeal. Respondents argue the order was correct because such costs should await the ultimate outcome of a second trial and because the original cost judgment paid prior to the appeal was not assigned as error. We hold those contentions of the respondents are without merit for the reason that in a similar situation the Supreme Court treated such a payment as an appeal cost and allowed it in taxing costs following appeal. See King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858; and King v. Weis-Patterson Lumber Co., 127 Fla. 109, 172 So. 693.1
Therefore, on the authority and example of the King case, we hold that the able trial judge was in error in failing to include in his order taxing costs the said amount of $107.90 paid by the plaintiff-appellant as a prerequisite to filing the appeal, and the cause is remanded with directions to the trial court to amend the cost judgment to include said sum.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Craft v. Marcel Clarembeaux, 162 So. 2d 325 (Fla. 2d DCA 1964)…view, the applicability of Rule 3.16(c) is limited to those cases involving the taxation of costs by a lower court when the cause has been in an appellate court and recurs below on mandate of the appellate court. See Abrams v. Gresham, Fla.App.1962, 136 So. 2d 380; Dames v. Dames, Fla.App. 1963, 156 So. 2d 532. In determining that Rule 3.16(c) is applicable only as a means of reviewing cost judgments entered after entry of an appellate court’s mandate in the cause, we are not unmindful of the rule’s provisio…
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Giovannielli v. Lacedonia, 179 So. 2d 407 (Fla. 3d DCA 1965)…t of minutes of trial 202.80 “Costs Judgment, heretofore entered for Plaintiff 497.50 TOTAL $783.20” This was not a case in which the plaintiff was required to pay, or supersede costs [*408] prior to an appeal, as in Abrams v. Gresham, Fla.App.1962, 136 So. 2d 380. In the instant case the defendant appealed, paid costs and obtained a reversal and remand for further proceedings in the trial court. Under these circumstances we do not believe it is proper to allow a costs judgment for plaintiff, pending the outc…
Authorities Cited
- King v. Weis-Patterson Lumber Co., 124 Fla. 272 (Fla. 1936)
- King v. Weis-Patterson Lumber Co., 127 Fla. 109 (Fla. 1937)
- Abrams v. Gresham, 131 So. 2d 207 (Fla. 3d DCA 1961)
- Simmons v. Gainesville Nehi Bottling Co., 119 So. 2d 719 (Fla. 1st DCA 1960)