STATE ROAD DEPARTMENT OF FLORIDA, AN AGENCY OF THE STATE OF FLORIDA, APPELLANT,
v.
DORIS HANCOCK ET AL., APPELLEES
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The trial court did not err in assessing appellate costs and attorney's fees against the condemning authority, as the statute mandates such payment.
The State Road Department sought review of a discovery order, and the appellate court denied certiorari. Subsequently, the trial court assessed costs …
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The State Road Department sought review here of a discovery order. We denied certiorari without opinion. Fla.Stat. § 73.131, F.S.A. (1969) states that the condemning authority “shall pay all reasonable costs of the proceedings in the appellate court, including a reasonable attorney’s fee to he assessed by that court, * * * ” (emphasis supplied)
The trial court assessed costs and fees after this court declined to do so, and the Road Department now claims this was error.
We thought Judge Pierce’s opinion in Florida Board of Parks and Historic Memorials v. Collier, Fla.App.2d 1968, 213 So.2d 460, following the First District decision in Smith v. Tallahassee, 1966, 198 So.2d 380, had made the proper procedure clear. The fee is allowed by legislative mandate, not judicial grace, and we have no right to ignore the statute. We do have the power to refer factual determinations to trial courts. Perhaps purists would insist that we must follow the cumbersome procedure of appointing the trial judge as a commissioner, in which case his findings would be reported and the costs order entered here. As a purely grammatical matter, the Road Department has a point. Common sense tells us that literal compliance is unworkable. For this reason, statutory specification of the forum in which costs are assessed is held directory and not mandatory. Smith v. Tallahassee, supra.
The trial judge did right. He followed the mandate of the statute in accordance with the procedure approved by this court. After this mandate goes down he will again determine how much the petitioner must pay for these proceedings.
Affirmed.
PIERCE, C. J., and HOBSON, J., concur.
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Denmark v. State of Fla. Dep't OF Transp., 389 So. 2d 201 (Fla. 1980)…on and similar factual circumstances, we held in State Road Dept. v. Levato, 199 So. 2d 714 (Fla.1967), that the condemnee was entitled to attorneys’ fees even though the condemnor prevailed on appeal. Accord, State Road Dept. of Florida v. Hancock, 250 So. 2d 307 (Fla. 2d D.C.A. 1971). Petitioners are thus entitled to an attorneys’ fee for appellate services in this case. Accordingly, the order of the District Court of Appeal, Fourth District, denying attorneys’ fees is quashed. The cause is remanded to tha…
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State of Fla. Dep't OF Natural Res. v. Hudson Pulp & Paper Corp., 363 So. 2d 822 (Fla. 1st DCA 1978)…e judgment of the trial court shall be affirmed.” The fee authorized by F.S. 73.131(2) is allowed by legislative mandate, not judicial grace, and this court does not have the right to ignore the statute. State Road Department of Florida v. Hancock, 250 So. 2d 307, 308 (Fla. 2nd DCA 1971). Further, appellee Ford is entitled to an attorney’s fee for services rendered by his counsel on appeal in this appellate court notwithstanding that the condemnor, State of Florida Department of Natural Resources, was the s…
Authorities Cited
- Vinny C. Smith v. City OF Tallahassee, 198 So. 2d 380 (Fla. 1st DCA 1966)
- Fla. Bd. OF Parks & Historic Memorials v. Collier, 213 So. 2d 460 (Fla. 2d DCA 1968)