TOMORROW'S CHOICE, INC., APPELLANT,
v.
BASSING CO., INC., APPELLEE
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Tomorrow's Choice, Inc. appealed a mechanic's lien foreclosure judgment, challenging the trial court's denial of damages on its counterclaim, award of attorney's fees, and assessment of costs including appellate costs from a prior appeal. The court affirmed the trial court's judgment on most issues but reversed the assessment of appellate costs from the first appeal, holding that a prevailing appellant is ordinarily entitled to appellate costs.
The trial court did not err in denying damages on the counterclaim or in awarding attorney's fees, as the evidence did not establish proper proof of damages and the attorney's fees provision was properly applied. However, the trial court erred in assessing appellate costs from the first appeal against the appellant, because a prevailing appellant who obtains a reversal of a substantial portion of the judgment is ordinarily entitled to appellate costs.
[1] A trial court's finding that a party failed to present proper proof of damages is supported by the record when the evidence does not conclusively demonstrate entitlement…
[2] Attorney's fees may be awarded in an action to enforce a mechanic's lien pursuant to the relevant statutory provisions.
Previewing 2 of 5 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 appellant, in the first appeal, having procured a reversal of a substantial portion of the judgment, is entitled to appellate costs in that appeal.”
Establishes that a prevailing appellant who obtains reversal of a substantial portion of a judgment is entitled to appellate costs.
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Join FLexlaw to unlock all legal intelligenceTomorrow's Choice, Inc. was a defendant/counter-plaintiff in a mechanic's lien foreclosure suit brought by Bassing Co., Inc. The case had previously b…
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PER CURIAM.
These appeals are by Tomorrow’s Choice, Inc., defendant/counter-plaintiff from a final judgment and an amended final judgment in a mechanic’s lien foreclosure suit. The cause was previously before this court in Tomorrow’s Choice, Inc. v. Bassing Co., Inc., 343 So. 2d 70 (Fla. 3d DCA 1977). By direction of this court, the cause was remanded for a new trial on the issue of damages on the counterclaim. At the conclusion of that trial, the judge found that the counter-plaintiff was not entitled to recovery and taxed costs and attorney’s fees against the counter-plaintiff.
On this appeal, three points are presented. The first urges that the trial court erred in not awarding the counter-plaintiff damages on its counterclaim because the evidence conclusively demonstrated that the counter-plaintiff was entitled to recovery. The second point urges that the trial court erred in awarding attorney’s fees pursuant to Section 713.29, Florida Statutes (1973), which is the statute allowing attorney’s fees in an action brought to enforce a mechanic’s lien. The third point urges that it was error for the trial court, in its final judgment, to assess costs against the appellant including the costs of the first appeal where the appellant gained a partial reversal.
We hold that there is no merit in the first point presented inasmuch as an examination of the record supports the finding of the trial court that there was no proper proof of damages by reason of the claimed delay in the completion of a certain portion of the construction contract. The second point, likewise, does not show error under the holdings in Peacock Construction Company v. Gould, 351 So. 2d 394 (Fla. 2d DCA 1977); and Foxbilt Electric, Inc. v. Belefant, 280 So. 2d 28 (Fla. 4th DCA 1973).
It is our view that the third point does present error. Florida Appellate Rule 3.16 (in effect at the time of the first appeal) provides:
“a. Cost of Record-On-Appeal. Reasonable costs for preparing the record-on-appeal by the clerk of the lower court may be taxed in the lower court after the filing of the mandate.
“b. Where Taxed. All costs including appellate costs shall be taxed in the lower court pursuant to law.”
The appellant, in the first appeal, having procured a reversal of a substantial portion of the judgment, is entitled to appellate costs in that appeal. The trial court has the duty to assess appellate costs in accordance with the ordinary rule that a prevailing party, barring unusual circumstances, is entitled to costs. Cf. the federal position in City of Stuart v. Green, 94 F. 2d 942 (5th Cir. 1938); also cf. Masser v. London Operating Co., 106 Fla. 474, 145 So. 72, 79 (1932); but see General Capital Corporation v. Tel. Service Co., 239 So. 2d 134 (Fla. 2d DCA 1970). Where the record does not show a reason for the failure to follow the ordinary rule, the rule should be followed. Of course, a successful appellant is not entitled to unnecessarily incurred costs.
Accordingly, the judgment is affirmed except for appellate costs, and the cause is remanded to the trial court for an order assessing appellate costs on the first appeal in accordance with the directions herein.
Affirmed, except for costs.
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Dep't OF Labor & Emp. Sec. v. Am. Bldg. Maint. & Allstate Ins. Co., 449 So. 2d 932 (Fla. 1st DCA 1984)…xation of appellate costs. In the appeal to this court, the claimant was the “prevailing party” in that her allegations as to the errors in the findings of fact were sustained and the order reversed. Tomorrow’s Choice, Inc. v. Bassing Company, Inc., 364 So. 2d 530 (Fla. 3d DCA 1978) (counter-plaintiff who won a reversal was entitled to appellate costs even though on remand he still recovered no damages). Further, while the employer/carrier may have been successful when the deputy commissioner reconsidered the…
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Fla. E. Coast Props., Inc. v. Coastal Constr. Prods., Inc., 553 So. 2d 705 (Fla. 3d DCA 1989)…nd strike the appellate attorney’s fee award to Coastal. FECP requests an award of attorney’s fees under section 713.29, Florida Statutes (1987), arguing that FECP prevailed, in part, on the appeal. Although Tomorrow’s Choice, Inc. v. Bassing Co., 364 So. 2d 530, 532 (Fla. 3d DCA 1978), provides support for FECP’s position, the Tomorrow’s Choice definition of “prevailing party” has been overruled sub silentio by Mainlands Construction Co. v. Wen-Dic Construction Co., 482 So. 2d 1369, 1370 (Fla.1986). We the…
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Halberg v. Halberg, 522 So. 2d 542 (Fla. 3d DCA 1988)…the September 9,1986 custody trial; and (c) $123 of $273 for the transcript of the December 25 (sic) 1986, attorney fee hearing. See Finkelstein v. North Broward Hosp. Dist., 484 So. 2d 1241, 1243 (Fla.1986); Tomorrow’s Choice, Inc. v. Bassing Co., 364 So. 2d 530 (Fla. 3d DCA 1978). Reversed and remanded for entry of an order including the foregoing costs.…
Authorities Cited
- Masser v. The London Operating Co., 106 Fla. 474 (Fla. 1932)
- Gen. Cap. Corp. v. TEL Serv. Co., Inc., 239 So. 2d 134 (Fla. 2d DCA 1970)
- Foxbilt Elec., Inc. v. Belefant, 280 So. 2d 28 (Fla. 4th DCA 1973)
- Peacock Constr. Co. v. Henri P. Gould and Sarah Gould, 351 So. 2d 394 (Fla. 2d DCA 1977)
- Tomorrow's Choice, Inc. v. Bassing Co., Inc., 343 So. 2d 70 (Fla. 3d DCA 1977)
- City of Stuart v. Green, 94 F.2d 942 (5th Cir. 1938)