Craft v. Clarembeaux
| Decision Date | 27 March 1964 |
| Docket Number | No. 4026,4026 |
| Citation | 162 So.2d 325 |
| Parties | Claire E. CRAFT, Appellant, v. Marcel CLAREMBEAUX a/k/a M. C. Clarembeaux, Appellee. |
| Court | Florida District Court of Appeals |
Salisbury, Kaywell & Salisbury, Palm Beach and Langbein, Burdick & Silvian, West Palm Beach, for appellant.
Garlon A. Davis, of Ives & Davis, West Palm Beach, for appellee.
Appellant, plaintiff in the lower court, brings plenary appeal from an order taxing costs entered after appellant had, in 1961, taken a voluntary nonsuit. Appellee moved to dismiss the appeal soon after it was commenced but consideration of this motion was deferred until the merits of the cause were argued. Accordingly, both the question of jurisdiction and the dependent question with respect to the merits require determination.
Appellee's motion to dismiss the appeal (from an order taxing costs) was grounded on the conclusion that appellate review of such orders was available only by petition under Rule 3.16(c), Florida Appellate Rules, 31 F.S.A. This conclusion, certainly a reasonable one in light of the language of Rule 3.16(c), has apparently been adopted by our sister court of the Third District. In re Carol Florida Corp., Fla.App.1960, 118 So.2d 837. Cf. Horner v. State, Fla.App.1963, 148 So.2d 553. However, we must decline to follow the decision in the Carol Florida Corp. case. In our view, the applicability of Rule 3.16(c) is limited to those cases involving the taxation of costs by a lower court when the cause has been in an appellate court and recurs below on mandate of the appellate court. See Abrams v. Gresham, Fla.App.1962, 136 So.2d 380; Dames v. Dames, Fla.App.1963, 156 So.2d 532.
In determining that Rule 3.16(c) is applicable only as a means of reviewing cost judgments entered after entry of an appellate court's mandate in the cause, we are not unmindful of the rule's provision that if a party feel aggrieved 'by any judgment for costs, said judgment shall be reviewable in the appellate court upon petition * * *.' (Emphasis added.) However, when viewed in the context of preceding and succeeding paragraphs of Rule 3.16, in the context of all of the Rules, and in terms of suitability or adaptability as a method of bringing potentially complex problems to an appellate court, Rule 3.16(c) must, we conclude, be intended only to provide review in causes in which the appellate court has acquired both jurisdiction and familiarity. Cf. Florida Power Corp. v. Griffin, Fla.App.1963, 150 So.2d 270.
The determination that the method of review prescribed in Rule 3.16(c) is inapplicable in the instant case does not, however, resolve the jurisdictional question. As aforesaid, the instant case arises on plenary appeal and in such posture collides with the well established principle that a cost determination alone will not support plenary appeal. E. g. Gray v. Mann, 1904, 47 Fla. 162, 37 So. 161. This latter rule, while not precluding appellate review of cost determinations, does circumscribe the context in which such review may be had.
There would seem to be no question that an appellate court may review a cost determination when the determination is attacked as being erroneous as a matter of law. Thus, an award of costs beyond the power of the court or a refusal to award costs when such costs must be awarded presents a proper question for review on appeal from the final judgment. Hart v. Bostwick, 1872, 14 Fla. 162. This review is apparently available either when the alleged error concerning costs is assigned in conjunction with other errors, Hart v. Bostwick, supra, or when errors concerning costs and fees alone are assigned Dorner v. Red Top Cab & Baggage Co., 1948, 160 Fla. 882, 37 So.2d 160.
An excellent annotation in 54 A.L.R.2d 927 (1957) discusses the conflicting authority in this country on the question of appellate review of cost determinations. Recognizing the rule that an appellate court 'will not hear an appeal merely to determine the right to costs,' the annotation points out that the rule is by no means unanimously accepted and that even in jurisdictions purporting to accept the rule, qualification permitting review is often found. See Annot. 54 A.L.R.2d 927, 949-991. An examination of the cases wherein the rule against review of costs is strictly followed discloses, in many instances, statutory provisions dissimilar to our own and, in other instances, a rationale which is...
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Caufield v. Cantele
...voluntary nonsuit—writ of certiorari may lie as a means of securing review. Chatlos, 220 So.2d at 354 (quoting Craft v. Clarembeaux, 162 So.2d 325, 327 (Fla. 2d DCA 1964)). Cases holding that a petition for certiorari is the appropriate method for a district court to review a cost determina......
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Thoman v. Ashley, 4548
...Aronson, Fla.App., App.1958, 99 So.2d 643; State ex rel. Larkin v. Bird, 1941, 145 Fla.App., 477, 199 So. 758; cf. Craft v. Clarembeaux, Fla.App., App.1964, 162 So.2d 325. We note with interest however that the First District Court of Appeal has recently considered the merits of a similar c......
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Rose Printing Co., Inc. v. Wilson
...rev'd on other grounds, 583 So.2d 1022 (Fla.1991); Keener v. Dunning, 238 So.2d 113, 114 (Fla. 4th DCA 1970); and Craft v. Clarembeaux, 162 So.2d 325, 327 (Fla. 2d DCA 1964), reject Wilson's jurisdictional argument, and quash the trial court's Wilson was formerly employed as Rose's general ......
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State, Dept. of Citrus v. Griffin, 75-171
...36).5 See Campbell v. Maze (Fla.App.4th, 1975), 307 So.2d 234; Granoff v. Cherin (Fla.App.3d, 1972), 270 So.2d 430; Craft v. Clarembeaux (Fla.App.2d, 1964), 162 So.2d 325. But cf. Giachetti v. Johnson (Fla.App.2d, 1975), 308 So.2d 143. A similar rule applies to an order awarding costs after......