20 Fla. L. Weekly Supp. 390a
Online Reference: FLWSUPP 2004GARQInsurance — Costs — Appellate — Rule requires immediate taxation of appellate court costs, including execution thereon, following appellate court’s remand for further proceedings unless appellate court orders otherwise — County court in instant case erred in not making judgment for appellate costs subject to immediate execution — Appellant entitled to costs incurred in filing instant motion seeking review of county court’s order
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. HOMESTEAD CHIROPRACTIC REHAB CENTER, a/a/o David Garquera, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE09-047263 (21) (Consolidated with CACE10-0012770). L.T. Case No. COCE07-010075. December 20, 2012. Counsel: Thomas L. Hunger, United Automobile Insurance Company, Office of General Counsel-Appellate Division, Miami, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, Miami. William C. Ruggiero, Law Offices of William C. Ruggiero, Fort Lauderdale, for Appellee.
OPINION ON MOTION FOR REVIEW OF COUNTY COURT’SORDER STAYING TAXATION OF APPELLATE COSTS
(MURPHY, III, Judge.) THIS CAUSE came before the Court, sitting in its appellate capacity, upon United Automobile Insurance Company’s Motion for Review of County Court Order Staying Taxation of Appellate Costs, filed August 28, 2012. This Court, having carefully considered the Motion for Review of County Court Order Staying Taxation of Appellate Costs, the transcript, the court file, the applicable law and being duly advised in the premises, finds that the Motion for Review of County Court Order Staying Taxation of Appellate Costs must be granted and the county court’s order on motion to tax appellate costs must be affirmed in part and reversed in part as set forth below.I. Procedural History
On January, 23, 2012, this Court rendered its Opinion reversing the county court’s entry of final summary judgment in favor of Homestead Chiropractic Rehab Center (“Appellee”) and remanded the case for further proceedings. On February 16, 2012, this Court issued its Mandate. Having prevailed on the appeal of the final summary judgment, United Automobile Insurance Company (“Appellant”) timely moved the county court for an assessment of appellate costs pursuant to Florida Rule of Appellate Procedure 9.400(a). The county court awarded $717.00 in appellate costs, but stayed the execution of the judgment for appellate costs until the end of the case. Pursuant to Florida Rule of Appellate Procedure 9.400(c), Appellant seeks review of the county court’s order on motion to tax appellate costs, specifically arguing that the county court erred in staying the execution of the judgment for appellate costs.II. Standard of Review
In reviewing the county court’s order on motion to tax appellate costs, this Court must determine whether the trial court applied the correct law and whether it abused its discretion. Florida Power & Light Co. v. Polackwich, 705 So. 2d 23, 25 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D626b].III. Analysis
Florida Rule of Appellate Procedure 9.400(a) provides that “[c]osts shall be taxed in favor of the prevailing party unless the court orders otherwise.” Fla. R. App. P. 9.400(a). The term “prevailing party” in rule 9.400(a) refers to the party who prevails in the appellate proceeding that is the subject of a motion to tax costs. See Phillip J. Padovano, Florida Appellate Practice § 22:2 (2011 ed.). It does not refer to the party who ultimately prevails in the county court. See Dep’t of Labor and Employment Security v. American Building Maintenance, 449 So. 2d 932 (Fla. 1st DCA 1984); and Padovano, supra, § 22:2. In other words, the “prevailing party” in the appeal is entitled to an award of appellate costs regardless of the ultimate outcome of the proceeding on remand. See Stringer v. Katzell, 695 So. 2d 369 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D590a]; Dep’t of Labor and Employment Security, 449 So. 2d at 932; and Padovano, supra, 22:2. Consequently, a party who obtains a judgment for appellate costs following a remand for further proceedings may execute such judgment immediately without waiting for the ultimate disposition of the case in the lower tribunal. See Lucas v. Barnett Bank of Lee Cnty., 732 So. 2d 405 (Fla. 2d DCA 1997) [24 Fla. L. Weekly D976a]; and Di Teodoro v. Lazy Dolphin Dev. Co., 432 So. 2d 625 (Fla. 3d DCA 1983).
The term “court” in the phrase “unless the court orders otherwise” refers exclusively to the appellate court as defined in Florida Rule of Appellate Procedure 9.020(c). See Fla. R. App. P. 9.020(c) (defining “court” as the supreme court; the district courts of appeal; and the circuit courts in the exercise of the jurisdiction described by rule 9.030(c)); and American Medical Intern. Inc. v. Scheller, 484 So.2d 593 (Fla. 4th DCA 1985). The exception to taxation of appellate costs created by the phrase “unless the court orders otherwise” vests the appellate court, not the county court, with discretion to delay rendition and/or execution of a judgment for appellate costs. See Pardo v. Goldberg, 92 So. 3d 295, 298 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D1676a]; Stringer, 695 So. 2d at 370 (Pariente, J., dissenting); and Okeelanta Corp. v. Bygrave, 727 So. 2d 950, 951-52 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1769g] (Pariente, J., dissenting).
Consequently, rule 9.400(a) has historically been interpreted to mandate immediate taxation of appellate court costs, including execution thereon, following the appellate court’s remand for further proceedings unless the appellate court orders otherwise. See Dahly v. Dep’t of Children and Family Services, 845 So. 2d 350 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1307a]; Lucas, 732 So. 2d at 405; Di Teodoro, 432 So. 2d at 625; Swan v. Wisdom, 392 So. 2d 987 (Fla. 5th DCA 1981); and Yost v. Congress Int’l Dev. Corp., 383 So. 2d 732 (Fla. 3d DCA 1980).Thus, in the instant matter, the county court failed to apply the correct law and abused its discretion. See Fleitman v. McPherson, 704 So. 2d 587, 589 (Fla. 1st DCA 1997) [22 Fla. L. Weekly D2091a] (citing Florida Power & Light Co., So. 2d at 23, and Stringer, 695 So. 2d at 369). The county court erred in not making the judgment for appellate costs subject to immediate execution absent a contrary order of this Court. Moreover, the Appellant is entitled to the costs incurred in filing the instant Motion seeking review of the county court’s order. See Johnson v. Jarvis, 37 Fla. L. Weekly D2107a (Fla. 1st DCA Aug. 31, 2012) [correction at 37 Fla. L. Weekly D2241a]. Accordingly it is
ORDERED AND ADJUDGED as follows:
1. Appellant’s Motion for Review of County Court Order Staying Taxation of Appellate Costs is hereby GRANTED.
2. Appellant is entitled to recover the costs incurred in filing the instant Motion for Review of County Court Order Staying Taxation of Appellate Costs.
3. The county court’s order on motion to tax appellate costs is hereby AFFIRMED IN PART, as to the assessment of appellate costs related to the prior appeal, REVERSED IN PART, as to the stay of execution of the same, and REMANDED for proceedings consistent with this Opinion.
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