Recovering Appellate Costs in Florida
Litigating a case through trial and appeal is expensive. At the end of the day, it is likely a significant sum has been expended on various litigation costs. If you lost at trial, but prevailed on appeal, can you recover your costs? What if you won at trial but now the judgment has been reversed on appeal?
Although there is no right to attorneys’ fees, unless a contract or statute provides otherwise, for civil appeals in Florida’s appellate courts, “taxable costs” can be recovered from the opposing party following a successful appeal. This article covers the law and requirements for a party who prevails on appeal to recover their appellate costs.
How do I Recover my Appellate Costs?
The procedure for obtaining an award of appellate costs is governed by Florida Rule of Appellate Procedure 9.400. Importantly, under Rule 9.400 the trial court, not the appellate court, is the court authorized to award appellate costs. See Giddens v. Tlsty, 98 So. 3d 257, 257 (Fla. 1st DCA 2012); Fla. R. App. P. 9.400(a) (emphasis added) (“Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order.”).
In order to obtain an award of appellate costs, the party prevailing on appeal must file a motion with the trial court and serve it on the other parties to the trial court proceedings no later than 45 days from the rendition of “the [appellate] court’s order.” See Fla. R. App. P. 9.400(a).
The appellate “court’s order” referred to in Rule 9.400 is the decision or opinion of the appellate court at the conclusion of the appeal. Under the rule, a party must serve a motion to tax appellate costs within 45 days of “rendition” of the appellate court’s opinion. There is no need to plead or otherwise request an award of appellate costs prior to filing this motion. See First Protective Ins. Co. v. Featherson, 978 So. 2d 881, 884 (Fla. 2d DCA 2008) (noting everyone that litigates an appeal is “on notice” that costs are at issue).
An appellate order is not deemed “rendered” if a timely and authorized motion is filed. See Fla. R. App. P. 9.020(j) (“If any timely and authorized motion under [R]ule 9.330 or 9.331 is filed, the order shall not be deemed rendered as to any party until all of the motions are either withdrawn or resolved by the filing of a written order.”). For example, the 45-day period may be tolled if a timely motion for rehearing is filed that would delay rendition of the appellate court’s order or opinion until a ruling on the rehearing motion.
Further, the deadline for moving to tax appellate costs is jurisdictional and, thus, a late filing cannot be remedied by the trial court or by the parties. See Mulato v. Mulato, 734 So. 2d 477, 478 (time requirements for motion pursuant to Rule 9.400 are jurisdictional).
Who May Recover Appellate Costs?
Rule 9.400 states that costs “shall” be awarded to the prevailing party “unless the court orders otherwise.” See Fla. R. App. P. 9.400(a). Consequently, the trial court generally has no discretion to deny an award of taxable costs to the party that prevailed.
In Fla. Power & Light Co. v. Polackwich, 705 So. 2d 23, 25 (Fla. 2d DCA 1997), the Second District noted that “unless the court orders otherwise” language provides the appellate court the discretion to grant a motion for rehearing following an appellate opinion and order that appellate costs not be taxed. However, the Court noted that such a scenario would present “a very unusual case.” Id.
Therefore, the main issue for the trial court in ruling on entitlement to appellate costs is determining who “prevailed” on appeal. This inquiry is strictly limited to the appeal. It does not matter that the party may ultimately lose in the trial court after winning on appeal. See Centennial Mortgage, Inc. v. SG/SC, Ltd., 864 So. 2d 1258, 1260 (Fla. 1st DCA 2004) (ruling that an award of costs after a successful appeal may not be conditioned upon the ultimate outcome of the case); Osterback v. L.E. Turner, 855 So. 2d 1237, 1238 (Fla. 1st DCA 2003) (ruling an award of costs under Rule 9.400(a) does not depend on a party’s ultimate success on the merits of a claim).
Moreover, the trial court must determine who won on the significant issues on appeal. See Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807, 810 (Fla. 1992) (defining “prevailing party” for purposes of appellate costs as “the party prevailing on the significant issues”). Generally, this is a fairly straightforward inquiry. However, in some appeals, especially involving multiple parties or multiple issues, determining who prevailed on the significant issues can be difficult.
For example, appellate costs may be denied if the opposing party prevailed on a single issue on appeal or if the final judgment was left largely undisturbed on appeal. See Thaller v. Waterford Point Condo. Apartments, Inc., 437 So. 2d 248, 248 (Fla. 4th DCA 1983) (quashing trial court’s order awarding appellate costs when judgment was affirmed on all claims with exception of principal and interest due to condominium association).
In Markin v. Markin, 953 So. 2d 13 (Fla. 4th DCA 2007), the Fourth District Court of Appeal reversed an order awarding appellate costs to a former husband following an appeal from a final judgment of dissolution of marriage. Even though the former husband obtained a credit of $1.2 million for post-judgment alimony as a result of his appeal, the appellate court found that, in the grand scheme of the case, the issue was relatively insignificant. Id. at 14.
As the Court explained, he was “merely given a credit” for amounts already paid and his obligations under the final judgment were not reduced. Malkin, 953 So. 2d at 14. Thus, even though he prevailed on a single issue that, considered in isolation, may appear significant, he was not the “prevailing” party on the overall significant issues on appeal. Id.
Additionally, exceptions have been found even when a party clearly prevailed. In General Capital Corp. v. Tel Service Co., 239 So. 2d 134, 136 (Fla. 2d DCA 1970), the Second District affirmed a trial court’s taxing of appellate costs against the successful appellant when victory was obtained only because of intervening legislation.
Further, as observed by the Third District Court of Appeal, appellate costs do not automatically “follow the judgment.” In Varveris v. Carbonell, 785 So. 2d 576, 577 (Fla. 3d DCA 2001), the Court reversed a costs award to the appellant when the case was remanded only for the purpose of serving the appellant with process — not dissolving the challenged injunction.
Finally, in some cases, the trial court may properly determine that no party “prevailed” on appeal. See Phares v. Cowles, 459 So. 2d 1110, 1113 (Fla. 4th DCA 1984) (“In the absence of an ability to identify with a relative degree of certainty just who the prevailing party might be, it would be inappropriate to assess costs.”); Newton v. Tenney, 122 So. 3d 390, 392 (Fla. 4th DCA 2013) (noting that in some contract cases there may be compelling circumstances in which trial court could find that neither party prevailed, but there the defendant prevailed on the significant issues).
What Appellate Costs Are Recoverable?
Rule 9.400 specifies the costs recoverable on appeal. These costs are:
- fees for filing and service of process;
- charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding;
- bond premiums; and
- other costs permitted by law.
See Fla. R. App. P. 9400(a).
As noted, a trial court generally does not have discretion to disallow any of the enumerated recoverable costs once the court determines that there is a “prevailing” party. However, the court does have discretion as to the amount of the award.
For example, in American Medical Inter. Inc. v. Scheller, 484 So. 2d 593 (Fla. 4th DCA 1985), the Fourth District affirmed a trial court’s ruling reducing the prevailing party’s recovery of supersedeas bond premiums. The amount was reduced based on evidence that the bond premium was so high because of multiple briefing extensions. Id. at 594–95.
In Florida Power & Light Co. v. Polackwich, 705 So. 2d 23, 26 (Fla. 2d DCA 1997), the Second District suggested that if a supersedeas bond was unnecessary, that this cost may not be recoverable. Thus, if the opposing party agrees not to execute the final judgment during the pendency of the appeal, or was never contacted to find out if collections would ensue, there is an argument that the cost of a supersedeas bond was unnecessary.
Similarly, the trial court may determine that the costs of preparing the appellate record should be apportioned or shared when both parties prevailed on significant issues and sought to challenge the judgment. See Florida Power & Light Co., 705 So. 2d at 25. If there were portions of the record that were only necessary to a cross-appeal, the party that lost that appeal will likely bear those costs. Id. Again, the trial court has broad discretion in determining whether there is, in fact, a single prevailing party, and how the appellate costs should be apportioned.
Rule 9.400 also allows recovery of “other costs permitted by law.” See Fla. R. App. P. 9400(a)(4). In Miccosukee Tribe of Indians of South v. Bermudez, 155 So. 3d 489 (Fla. 3d DCA 2014), a trial court’s order awarding a court registry fee in the amount of $71,961.59 as a taxable appellate cost was challenged.
There the Court noted that “by law” means “by enactment of the Florida Legislature.” Miccosukee Tribe, 155 So. 3d at 491. As the legislature has provided by law that costs include, “[t]he reasonable premiums or expenses paid on all bonds or other security furnished by such party,” the recovery of these costs was permitted under Rule 9.400(a)(4). Id. (citing Fla. Stat. § 57.071(1)(a)).
How Do I Support, or Object, to an Award of Appellate Costs?
A party is entitled to notice and an opportunity to be heard before appellate costs may be imposed. See Alexis v. State, 12 So. 3d 1281, 1282 (Fla. 4th DCA 2009) (ruling that a party is entitled to notice and an opportunity to be heard before appellate costs are imposed).
The party seeking recovery of appellate costs must also show that the amounts sought were actually incurred. See Lone Star Indus., Inc. v. Liberty Mutual Ins. Co., 688 So. 2d 950, 952 (Fla. 3d DCA 1997) (ruling that Liberty Mutual’s mere “paper transfer” of funds on its balance sheet from its claim department to its surety department for the purposes of procuring a supersedes bond was not a “cost” within meaning of Rule 9.400(a)(3)).
For example, theoretical lost interest on a cash bond is not a recoverable taxable cost under Rule 9.400. See Rehman v. ECC Inter. Corp., 707 So. 2d 752, 753 (Fla. 5th DCA 1998). Therefore, a motion seeking to tax appellate costs should be supported by evidence verifying the nature of the costs incurred and the amounts actually incurred.
Practically speaking, the costs must be identified and itemized to allow the trial court to make the proper award, and to provide the opposing party notice and an opportunity to object. Although not specifically required by the rules, invoices verifying the costs should be submitted with the motion to tax costs.
The Trial Court Awarded Appellate Costs, When Can I Collect Them?
As noted above, appellate costs should be awarded without regard to the status of the underlying proceeding because the costs are awarded based on the appeal, not what happens when the case is returned to the trial court after reversal on appeal. See L.J. Johnson v. Jarvis, 107 So. 3d 428, 430 (Fla. 1st DCA 2012) (finding that while the assessment of attorneys’ fees may be deferred until the determination of a prevailing party on remand, the assessment of costs is not likewise deferred); Bernstein v. Newe Beginnings Trustee, LLC, 2 So. 3d 346, 347 (Fla. 4th DCA 2008) (“Although the assessment of attorney’s fees may be deferred until the determination of a prevailing party, the assessment of costs is not likewise deferred.”).
Moreover, an order awarding costs is immediately executable. See Swan v. Wisdom, 392 So. 2d 987, 987 (Fla. 5th DCA 1981) (ruling it was error not to make order awarding successful appellant certain appellate costs subject to execution prior to outcome of new trial); Di Teodoro v. Lazy Dolphin Dev. Co., 432 So. 2d 625, 626 (Fla. 3d DCA 1983) (error to deny immediate execution of cost judgment). Therefore, once awarded, appellate fees can be collected immediately from the losing party.
How Do I Challenge the Trial Court’s Ruling on Appellate Costs?
A challenge to a trial court’s order either granting or denying a motion to tax appellate costs is made by motion filed with the appellate court within 30 days of the trial court’s order. See Fla. R. App. P. 9.400(c). The appellate court will review the matter under the abuse of discretion standard. See General Capital Corp. v. Tel Service Co., 239 So. 2d 134, 135–36 (Fla. 2d DCA 1970). The burden is on the party challenging the trial court’s allocation of the appellate costs to clearly demonstrate that the trial court erroneously allocated the costs. Id. at 136.
If the trial court failed to award appellate costs falling within the enumerated categories set forth in Rule 9.400, the order will likely be reversed as the award of such costs is mandatory to a prevailing party. But, as already mentioned, if reasonable persons could differ as to whether one party “prevailed” on appeal, or there was an evidentiary basis for reducing the amount awarded, the order will likely be affirmed.