Roberts v. Askew

• Decision Date: 29 March 1972
• Docket Number: No. 41740,41740
• Citation: 260 So.2d 492
• Court: Florida Supreme Court
• Parties: Walter Van B. ROBERTS et al., Petitioners, v. Reubin O'D. ASKEW, Governor, et al., as and constituting the Board of Trustees of the Internal Improvement Trust Fund of Florida, Respondents.

Page 492

260 So.2d 492

Walter Van B. ROBERTS et al., Petitioners, v. Reubin O'D. ASKEW, Governor, et al., as and constituting the Board of Trustees of the Internal Improvement Trust Fund of Florida, Respondents.

No. 41740.

Supreme Court of Florida.

March 29, 1972.

Rehearing Denied April 27, 1972.

Dye, Dye, Smith, Cleary & Scott, Bradenton, and Holland & Knight, Bartow, for petitioners.

M. Stephen Turner, Gen. Counsel, Internal Improvement Trust Fund, Tallahassee, for respondents.

J. Kenneth Ballinger, Tallahassee, as amicus curiae.

ADKINS, Judge.

This is an original proceeding in mandamus. An alternative writ was issued and a return has been filed.

Petitioners were the successful litigants in a suit to quiet title against the respondents and their predecessors in office, as the Board of Trustees of the Internal Improvement Trust Fund. Final judgment quieting petitioners' title against the claims of respondents was entered on October 18, 1968. This final judgment provided, inter alia, 'that cost may be taxed upon motion.' The attempted appeal by respondents from this judgment was dismissed by the District Court of Appeal on January 7, 1969, as being untimely filed. On May 8, 1969, petitioners moved to tax costs pursuant to the above provision of the final judgment. After two hearings, costs were awarded by an order entered October 15, 1969. Respondents did not seek a review of this order.

When respondents refused to comply with the order, even though they sought no review, petitioners instituted these proceedings to compel respondents to pay the costs awarded by the trial judge.

On March 13, 1969, the District Court of Appeal, First District, rendered its decision in Merrill v. Simpson, 220 So.2d 33 (Fla.App.1st, 1969), allowing costs to be taxed against the taxing authorities of a county. This decision was approved by this Court (Simpson v. Merrill, 234 So.2d 350) on the ground that Fla.Stat. § 57.041(1), F.S.A., does not exclude the State or its agencies. This statute reads as follows:

'The party recovering judgment shall recover all his legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.'

Petitioners say that the obligation to pay the cost judgment is merely a ministerial obligation commanded by a valid court order and they have a clear legal right to have respondents comply with the order of the trial court by paying the costs. Respondents say that since the costs were not made a part of the final judgment of October 18, 1968, and since the motion to tax costs was not made before the judgment became conclusive and irrevocable, the trial court was without jurisdiction to tax costs at the time of petitioners' motion of May 8, 1969. Further, respondents say that the motion to tax costs was improper because Simpson v. Merrill, Supra, should not be applied retroactively and the motion was tainted by laches.

There is no statute, nor is there any rule of this Court, which specifies the time when the motion for taxation of costs must be filed. In Chatlos v. City of Hallandale, 220 So.2d 353 (Fla.1969), we quoted with approval from Craft v. Clarembeaux, 162 So.2d 325 (Fla.App.2d, 1964), as follows:

'There are then at least three distinct means of securing review of cost determination. If the cost determination is entered in the final judgment or is made subsequent to rendition of the final judgment but prior to timely appeal from that judgment, plenary appeal from the final judgment and a proper assignment or, if appropriate, cross-assignment of error will bring the cost order to the appellate court. See Rules 3.2(d), 3.3 and 3.5, F.A.R. If the cost determination is made after entry of a final judgment and the judgment has been appealed, the time for appealing the final judgment has expired or the aggrieved party does not desire to appeal the final judgment, interlocutory appeal from the cost judgment will bring that matter to the appellate court. Rule 4.2, F.A.R. If the cost judgment is entered after the mandate of the appellate court has been lodged in the cause, petition under Rule 3.16 will provide a means of review.' (p. 327)

Chatlos v. City of Hallandale, Supra, recognizes the several different times at which costs may be taxed under our procedure:

(1) A cost adjudication contained in the final judgment itself;

(2) A cost adjudication after final judgment but prior to the taking of an appeal, or expiration of the appeal period;

(3) A cost adjudication after final judgment and after the taking of a timely appeal;

(4) A cost adjudication after final judgment and subsequent to the expiration of the appeal period;

(5) A cost adjudication after final judgment and after the mandate from the appellate court has been lodged in the clause.

Chatlos v. City of Hallandale, Supra, indicates that the review of the cost determination under (1) and (2) can be made in a plenary appeal with proper assignment of error. Situations (3) and (4) do not permit the cost determination to be reviewed in a plenary appeal, and the procedure is the taking of an interlocutory appeal under Rule 4.2, F.A.R., 32 F.S.A. Situation (5) mandates review by petition pursuant to Rule 3.16, subd. c, F.A.R.

We now hold that costs may be adjudicated after final judgment, after the expiration of the appeal period, during the...