22 Fla. L. Weekly Supp. 631a
Online Reference: FLWSUPP 2205STEWInsurance — Appellate costs — Insurer that prevailed on appeal is entitled to recover bond premiums it was required to incur to prosecute appeal — Where insurer appealed only pretrial issue, insurer is not entitled to reimbursement for cost of preparing entire trial transcript
AFFILIATED HEALTHCARE CENTERS, INC., a/a/o COLLIN STEWART, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-10455 SP 05 (08). December 9, 2014. Wendell M. Graham, Judge.
JUDGMENT FOR DEFENDANT’S APPELLATE COSTS
This cause came on to be heard December 2, 2014, upon the Defendant’s motion to tax appellate costs. After hearing the arguments of counsel and being otherwise fully advised in the premises, the court makes the following findings of fact and conclusions of law:
The parties agree to numerous line items which total $939.79. That amount shall be awarded to the Defendant. The Plaintiff objects to Defendant’s request for reimbursement of $747.33, appellate bond premiums and $3,958.50, for preparation of the trial transcript.
A Defendant is entitled to recover the costs of the bond premiums for an appeal. Rule 9.400(a), Fla. R. App. P., expressly includes bond premiums as a taxable cost. In the instant case, the Defendant posted a bond for the appeal pursuant to Rule 9.310(b)(1), which states in relevant part:
(1) Money Judgments. If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest.
The Third District Court of Appeal has held that if an appellant seeks to stay execution of a money judgment pending appeal, the stay may be obtained only by the posting of the bond in the amount set forth in the Rule. Mellon United National Bank v. Cochran, 776 So.2d 964 (Fla. 3d DCA 2000) [26 Fla. L. Weekly D22a]; Campbell v. Jones, 648 So.2d 208 (Fla. 3d DCA 1994) [20 Fla. L. Weekly D3b]; First Dev. Co. v. Bemaor, 449 So.2d 290 (Fla. 3d DCA 1983); Palm Beach Heights Development and Sales Corp. v. Decillis, 385 So.2d 1170 (Fla. 3d DCA 1980). The Fourth District has held similarly, finding that a “trial court had no authority to withhold execution of this money judgment unless a bond . . . was posted.” Caruso v. Caruso, 932 So.2d 457, 458 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1506a]. Additionally, other County Courts have agreed with the Defendant’s position herein in identical motions and objections thereto and have awarded the Defendant the bond premium as part of its appellate costs. Tejada v. United Auto. Ins. Co., 18 Fla. L. Weekly Supp. 901a (Fla. 11th Cty. Ct. July 1, 2011); Adis Suarez v. United Auto. Ins. Co., 19 Fla. L. Weekly Supp. 490b (Fla. 11th Cty. Ct., Feb. 29, 2012).
Plaintiff today relies upon the case of Florida Power & Light Company v. Polackwich, 705 So.2d 23 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D626b], arguing that this Court should use its discretion not to award the cost of the bond premiums incurred by Defendant. But the circumstances surrounding the appeal in the instant case are different from those in Polackwich. There, determining which party had prevailed on the significant issues on appeal was a somewhat complicated matter. Polackwich, at p.25. Both parties had prevailed on significant issues. Both parties wanted to appeal, needed to appeal, and did appeal. There, the necessity of a bond was truly an issue worthy of discussion. The Plaintiff was dissatisfied with its judgment. It was unlikely that Plaintiff would care to execute on what it considered to be an inadequate judgment. As a matter of professionalism and practicality, the need for a bond should have been discussed prior to incurring such a cost, and the burden for initiating such a discussion was on the defendant/appellant.
But in the instant case, the Plaintiff was not interested in appealing the judgment and therefore was quite capable of executing in the absence of a stay. Under these circumstances, had Plaintiff wanted to avoid the possibility of this cost shifting, the burden was upon Plaintiff/Appellee to contact United and advise the insurer that no bond would be required. In the absence of such an offer from Plaintiff, the Defendant was obligated to incur the expense of a bond premium, or post an appropriate cash bond. United is the sole prevailing party on appeal. Therefore, this court finds Defendant, United Automobile Insurance Company, is entitled to reimbursement of all funds expended on the bond premiums, i.e., $747.33.
Plaintiff also has objected to the Defendant’s request to be reimbursed for the cost of producing the entire trial transcript. Plaintiff argues the Defendant appealed only a pre-trial issue and relied only on fifteen pages of the trial transcript. The Defendant argues it is entitled to reimbursement of the three day trial transcript in its entirety. Defendant argues its appellate attorneys are entitled to review the entire case, including the entire trial proper, to determine which issues should be included in United’s appeal. Defendant argues that it’s choice not to appeal any trial issues should not negate the legitimacy of incurring the expense of having the entire trial transcribed for its appellate attorney’s review.
The undersigned respectfully disagrees. The singular issue raised on appeal was res judicata. That argument occurred only pretrial. Plaintiff represents to this court that pretrial argument is covered in fifteen pages of the transcript. The lawyers preparing an appeal should exercise some sense of fiscal responsibility. If the trial had lasted two months, would counsel for appellant be allowed to transcribe the entire trial, appeal an issue argued only prior to trial, then pass along the entire cost of a two month trial transcript to the losing party? The Statewide Uniform Guidelines for Taxation of Costs in Civil Actions state, “. . . it is the burden of the moving party to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken.” 915 So.2d 612 (Fla. 2005) [30 Fla. L. Weekly S797a]. It cannot be said it was reasonably necessary to transcribe a three day trial when the only issue being appealed was addressed prior to that trial.
The court rejects the notion that the losing party should pay for the prevailing party’s appellate lawyer to read the entire transcript in order to ferret out possible appealable issues occurring during the entire trial. In any fee or cost shifting scheme, the court must place an overlay of reasonableness upon its inquiry. In other words, the prevailing party may have paid its attorneys for any number of legal services. However, the party ordered to reimburse the prevailing party should be required to pay only those costs which were reasonably incurred. Lawyers trying a case should assist their appellate attorneys by directing them to issues that arose during trial. Trial counsel should keep a running log of possible issues for appeal. Although we are not today advocating placing a limit upon one’s own appellate counsel’s review of a trial transcript, the losing party in a cost shifting environment should not be required to pay for that exercise. In conclusion, the court orders that Plaintiff shall be required to pay for 15 pages at $6.50/page, $97.50. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant, United Automobile Insurance Company, 1313 N.W. 167th Street, Miami Gardens, Florida 33169, shall take from Plaintiff, Affiliated Healthcare Centers, Inc., a/a/o Collin Stewart, 8000 S.W. 67th Avenue, Miami, FL 33143, the total sum of $1,784.62, that shall bear interest at the rate of 4.75% a year, for which sum let execution issue.
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