JOSEPHINE GIOVANNIELLI, A WIDOW, AND FRED STREIT AND LORETTA STREIT, HUSBAND AND WIFE, APPELLANTS,
v.
MARIO LACEDONIA, APPELLEE
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Appellants challenged the inclusion of a prior costs judgment for the appellee in the appellate costs award. The court held that pending the outcome of remanded proceedings, a costs judgment from the initial trial should not be included in the appellate costs award, as it would be improper if the ultimate decision favors the defendants.
The court affirmed all items in the costs judgment except the inclusion of the $497.50 costs judgment entered for the plaintiff on November 18, 1964, which was reversed without prejudice to its reconsideration pending final determination of the matter on remand.
“Under these circumstances we do not believe it is proper to allow a costs judgment for plaintiff, pending the outcome of the matter on remand.”
The court's core holding that a costs judgment should not be included when the case is pending remand on substantive issues.
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Join FLexlaw to unlock all legal intelligenceThe appellee filed an equity action alleging continuing trespass. The trial court entered a judgment for the plaintiff with costs of $497.50 on Novemb…
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The appellants, defendants below, petitioned under Florida Appellate Rule 3.16(c), 31 F.S.A., for review of a judgment for costs.
The appellee, plaintiff below, filed an original action in equity, alleging a continuing trespass on land and that there was no adequate remedy at law. The trial court entered its decision and a costs judgment for the plaintiff on November 18, 1964, for $497.50. The defendant appealed and the cause was reversed, 177 So.2d 506, because of an adequate remedy at law, and remanded for a jury trial on the issue of a “boundary line”.
The defendants, on remand, filed a motion to tax costs and contended in part as follows:
* * >i< * * *
“And that, in accord with the Cost Judgment of November 18, 1964, entered for the plaintiff in pursuance of the final decree, these defendants paid $497.50, for the plaintiff, subject to out come of said appeal, which they are now entitled to recover from the plaintiff. * * *”
* * # * * *
The trial court thereupon entered its order approving the taxing of the following costs:
“Clerk of this court for filing appeal and preparing record on appeal 57.90
“Clerk of Appellate Court, filing fee 25.00
“Court Reporter, transcript 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 *408prior 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 outcome of the matter on remand. If the decision on remand is contrary to the plaintiff, the costs judgment would obviously also be improper.
We therefore affirm all items in the costs judgment, except the inclusion of the costs judgment entered for the plaintiff on November 18, 1964, and reverse as to that item, without prejudice to its consideration, pending a final determination of this matter on remand.
Affirmed in part, reversed in part.
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Cited By
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Thornburg v. Pursell, 476 So. 2d 323 (Fla. 2d DCA 1985)…We disagree. In the first appeal, we reversed and ordered a new trial on the issue of damages. Where a judgment is reversed on appeal, it is not proper to allow a cost judgment pending the outcome of the matter on remand. Giovannielli v. Lacedonia, 179 So. 2d 407 (Fla. 3d DCA 1965). The trial court therefore erred in affirming the cost judgment entered in favor of the defendants in the first trial because the judgment upon which it was predicated was reversed on appeal. Standard Guaranty Insurance Co. v. Gee…
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City OF Hallandale v. Chatlos, 211 So. 2d 53 (Fla. 4th DCA 1968)…r means of securing review of cost determinations has been fraught with confusion in this state. There are decisions to the effect that a cost judgment is reviewable only by petition under F.A.R. 3.16(c). See Giovannielli v. Lacedonia, Fla.App.1965, 179 So. 2d 407; Dames v. Dames, Fla.App. 1963, 156 So. 2d 532; Horner v. State of Florida, Fla.App. 1963, 148 So. 2d 553. The foregoing decisions were rendered by our sister court of the Third District. In Craft v. Clarembeaux, Fla.App.1964, 162 So. 2d 325, our si…
Authorities Cited
- Abrams v. Gresham, 136 So. 2d 380 (Fla. 3d DCA 1962)
- Giovannielli v. Lacedonia, 177 So. 2d 506 (Fla. 3d DCA 1965)