03-2017 HIGGS V. KLOCK

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State: Florida

Court: Florida Third District Court

Docket No: 03-2017 HIGGS V. KLOCK

Case Date: 05/26/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2004

ERVIN A. HIGGS, Monroe County ** Property Appraiser, ** Appellant, ** vs. ** JOSEPH P. KLOCK, JR., as Personal Representative ** of the Estate of Richard A. Heyman, Deceased, ** Appellee. **

CASE NO. 3D03-2017 LOWER TRIBUNAL NO. 99-1387

Opinion filed May 26, 2004. An Appeal from the Circuit Court for Monroe County, Richard Payne, Judge. John C. Dent, Jr., and Sherri L. Johnson, for appellant. Steel Hector & Davis and Joseph P. Klock, Jr., for appellee. Before SCHWARTZ, C.J., and SHEVIN and WELLS, JJ. SCHWARTZ, Chief Judge. This case began when an estate which owns Monroe County real property sued the appraiser to reduce its 1999 tax assessment. due course, the trial court found in its favor on the merits. In On

rehearing, however, the action was concededly-properly-dismissed for lack of subject matter jurisdiction because the taxpayer did not pay the 2000 and 2001 taxes as required by section 194.171(5), Florida Statutes (2002). (1987). See Bystrom v. Diaz, 514 So. 2d 1072

The appraiser then filed a motion to tax costs in his

favor as the "party recovering judgment"1 under section 57.041(1), Florida Statutes (2002)("The party recovering judgment shall

recover all his or her legal costs and charges which shall be included in the judgment. . . ."). motion and the appraiser appeals. The trial judge denied the

We reverse on the holding that,

as the statute provides, he is entitled to an award of his taxable costs. As we said in Weitzer Oak Park Estate, Ltd. v. Petto, 573 So. 2d 990, 991 (Fla. 3d DCA 1991), under the statute, "every party who recovers a judgment in a legal proceeding is entitled as a matter of right to recover lawful court costs, and a trial judge has no discretion to deny costs to the parties recovering judgment." We note that, in certain contexts, there may or may not, see Spring Lake Improvement District v. Tyrrell, 868 So. 2d 656 (Fla. 2d DCA 2004), be a distinction between the objectively determinable expression, "party recovering judgment," under section 57.041, Florida Statutes (2002), and the much more legally slippery term, "prevailing party," which is employed in many attorney's fees and costs provisions. See and compare Payne v. Cudjoe Gardens Property Owners Ass'n, ___ So. 2d ___ (Fla. 3d DCA Case no. 3D03-1109, opinion filed, May 5, 2004); Padow v. Knollwood Club Ass'n, 839 So. 2d 744 (Fla. 4th DCA 2003); Simmons v. Schimmel, 476 So. 2d 1342 (Fla. 3d DCA 1985), review denied, 486 So. 2d 597 (Fla. 1986); 51 Island Way Condominium Ass'n v. Williams, 458 So. 2d 364 (Fla. 2d DCA 1984), pet. for review denied, 476 So. 2d 676 (Fla. 1985). 2
1

Globe Auto Imports, Inc. v. Golden, 567 So. 2d 899, 900 (Fla. 2d DCA 1990); Oriental Imports, Inc. v. Alilin, 559 So. 2d 442 (Fla. 5th DCA 1990); see also Tacher v. Mathews, 845 So. 2d 332, 333-35 (Fla. 3d DCA 2003); Thornburg v. Pursell, 476 So. 2d 323, 324 (Fla. 2d DCA 1985); Kendall East Estates, Inc. v. Banks, 386 So. 2d 1245 (Fla. 3d DCA 1980). Because there is no question that the

defendant appraiser was the successful "party recovering judgment" in the form of a final dismissal with prejudice, the plain terms of the statute require reversal. The only even arguable position asserted to the contrary2 is based on the claim that because the appraiser's costs were expended in defense of the action on the merits, they had nothing to do with the reason he won the case. Thus, it is claimed, the costs served

no "useful purpose," see Southeast Florida Cable, Inc. v. Islandia I Condominium Ass'n, 661 So. 2d 91 (Fla. 4th DCA 1995), and should therefore not be taxed. This position, for which we find no

authority, see 20 Am. Jur. 2d Costs

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