"But at least you can recover your costs, right?": a practitioner's guide to appellate costs in Florida - the good, the bad, and the money.

• Author: Rooney, Carol M.
• Position: Appellate Practice

Litigating a case through trial and appeal is expensive. At the end of the day, your client has likely expended a significant sum on various litigation costs. If you lost at trial, but prevailed on appeal, can you recover your costs? What if you prevailed on your cross-appeal, but lost most of the issues in the main appeal? What if you won at trial, but now the judgment has been reversed on appeal for "further proceedings"? If there is no right to attorneys' fees, a client's recovery of his or her taxable costs following a successful appeal at least provides some consolation. This article answers some of the common questions and sets forth the governing law and requirements for obtaining an award of appellate costs. (1)

Who May Recover Appellate Costs?

Fla. R. App. P. 9.400 states that costs "shall" be awarded to the prevailing party "unless the court orders otherwise." (2) The trial court generally has no discretion to deny an award of taxable costs to the party that prevailed. (3) Thus, the main issue for the trial court in ruling on entitlement to appellate costs is determining who "prevailed" on appeal. And this inquiry is strictly limited to the appeal. It is of no matter that the party may ultimately lose in the trial court on remand. (4) The trial court must determine who won on the significant issues on appeal. (5) Generally, this is a fairly straightforward inquiry. In some cases, especially involving multiple parties and cross-appeals, determining who prevailed on the significant issues on appeal can be difficult. 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 the 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. As explained by the court, he was "merely given a credit" for amounts already paid and his obligations under the final judgment were not reduced. (6) 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.

Exceptions have been found even when the 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. (7) In some cases, the trial court may properly determine that no party "prevailed" on appeal. (8) In sum, who "prevailed" on appeal is not always readily discernible. Be prepared for a challenge if the opposing party prevailed on a single material issue on appeal, or if you are the appellant, and the final judgment was left largely undisturbed. (9)

How Do I Recover my Appellate Costs?

The procedures for obtaining an award of appellate costs are governed by Florida's appellate rules. Under Rule 9.400, the lower tribunal--not the appellate court--is the court authorized to tax appellate costs. (10) In order to obtain an award of appellate costs, a motion must be served on the parties to the trial court proceedings no later than 45 days from the rendition of "the court's order." (11)

The "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 his or her motion to tax appellate costs within 45 days of "rendition" of the appellate court's opinion. (12) As any seasoned appellate practitioner knows, the rendition of an order is important. It starts the clock running on critical appellate deadlines. The 45-day period referred to in Rule 9.400 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. As the rule only...