Sherman v. Sherman

• Decision Date: 25 September 2019
• Docket Number: No. 4D18-3578,4D18-3578
• Citation: Sherman v. Sherman, 279 So. 3d 188 (Fla. App. 2019)
• Parties: Valerie K. SHERMAN, Appellant, v. Myron K. SHERMAN, Appellee.
• Court: Florida District Court of Appeals

279 So.3d 188

Valerie K. SHERMAN, Appellant,

v.Myron K. SHERMAN, Appellee.

No. 4D18-3578

District Court of Appeal of Florida, Fourth District.

[September 25, 2019]

EN BANC

Per Curiam.

In this action involving partition of property, Valerie K. Sherman, the appellant and plaintiff below, appeals the final judgment and the denial of her motion to alter or amend the final judgment as to the issue of costs. The costs of the partition sale itself have been reimbursed from the proceeds of the sale. However, Valerie seeks an award against Myron K. Sherman, the appellee and defendant below, for the other costs of suit, pursuant to section 57.041(1), Florida Statutes (2018). Because the trial court incorrectly applied a "prevailing party" standard to costs awarded under section 57.041(1), when the correct standard is the "party recovering judgment," we reverse and remand for further proceedings. We consider this case en banc, to recede from conflicting language regarding the appropriate standard for awards of costs pursuant to section 57.041(1) in our prior opinions.

Background

Prior to her death, Ruth Frances Sherman created an irrevocable trust for the residence she lived in with her son, Myron. After Ruth's death, Valerie, Ruth's daughter, filed suit against her brother Myron individually and as co-trustee of the "the Trust Agreement." In the operative complaint, Valerie asserted five counts seeking: (1) a declaration of rights under the trust; (2) a resulting trust; (3) a constructive trust based on unjust enrichment; (4) trust liquidation; and (5) partition with a request for damages. At trial, Valerie sought alternative or supplemental awards of damages regarding the title ownership of the residence.

Myron raised various affirmative defenses and counterclaims for reformation (seeking a determination that he was the sole owner of the property after Ruth's death), slander of title, and "contribution" damages for expenses he advanced as a co-owner of the property, if the counterclaim for reformation was denied.

The matter proceeded to trial, after which the trial court entered its final judgment. In the judgment, the trial court concluded that no evidence had been presented as to any of the common-law damage claims made by each party, and therefore dismissed the damages claims. The trial court granted Valerie's request for declaratory judgment, determining that since its acquisition, the subject property was at all times owned by "the Trust Agreement." The trial court additionally adjudged as valid a corrective deed establishing that Valerie and Myron, as co-trustees of the the Trust Agreement, were the owners of the property. The trial court granted Valerie's request to liquidate the trust, which had continued in existence well beyond the ten-year term originally contemplated in the Trust Agreement. Important to this appeal, the trial court ruled:

6. The Court grants [Valerie's] Count V seeking partition and further finds that the premises consist of a single-family home which is not susceptible of partition in kind and can only be partitioned by sale. There appears to be no mortgages of record upon said parcel and a partition by sale shall convey full fee-simple title to the purchaser at said sale.

The final judgment directed Valerie to advance "any and all subsequent costs[,] fees or other expenses of this action," with a provision that she was to be reimbursed by the clerk of court from the proceeds of the sale. However, the final paragraph of the final judgment stated that "[o]ther than as indicated herein, each party to bear their own costs and attorney['s] fees." The final judgment did not grant any relief to Myron or determine that he prevailed on any defense.

After entry of the final judgment, Valerie filed a motion and supplemental motion to alter or amend the final judgment, pursuant to Florida Rule of Civil Procedure 1.530(g), seeking to eliminate the last paragraph of the final judgment providing that each party shall bear their own costs. Valerie asserted that nothing was presented at trial to support the trial court's ruling that each party should bear their own costs, and as the prevailing party , she was statutorily entitled to costs pursuant to section 57.041(1).

At the hearing on the motion to amend the final judgment, Valerie's counsel clarified that section 57.041(1) dictates that costs be awarded to the party recovering judgment , as opposed to the prevailing party , and explained that the final judgment granted Valerie's causes of action and granted nothing on Myron's affirmative defenses and counterclaims, making it clear that Valerie was both the prevailing party and the party recovering judgment.

Despite the fact that it was Valerie, and not Myron, who sought the partition, the transcript of the hearing indicates that the trial court denied Valerie's motion, reasoning that neither party was the prevailing party because the judgment was not favorable to one over the other, as there was a partition, and it was more equitable that each party incurring costs before the hearing should bear those costs without reimbursement, except as provided in the final judgment.

Following the hearing, the trial court entered an order simply stating that Valerie's motion to amend the final judgment was "denied." Valerie gave notice of appeal.¹

Appellate Analysis

"An appellate court reviews whether a trial court's award of costs is excessive for an abuse of discretion; however, whether a cost requested may be awarded, at all, is a question of law to be reviewed de novo." City of Boca Raton v. Basso , 242 So. 3d 1141, 1144 (Fla. 4th DCA 2018) (quoting Winn-Dixie Stores, Inc. v. Reddick , 954 So. 2d 723, 730 (Fla. 1st DCA 2007) ). As such, the standard of review of the trial court's denial of Valerie's request for costs is de novo.

On appeal, Valerie argues that the trial court erred in denying her motion to alter or amend the final judgment, precluding her from obtaining an award of costs. She contends the premise of the trial court's ruling is that there was no prevailing party, since the net effect of the judgment was to grant partition. Valerie argues the trial court should have applied the proper standard, the "party recovering judgment" standard, which would have entitled her to an award of costs under section 57.041(1).

Section 57.041(1) provides in pertinent part:

(1) The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment ....

§ 57.041(1), Fla. Stat. (emphasis added). Our supreme court in Hendry Tractor Co. v. Fernandez , 432 So. 2d 1315, 1316 (Fla. 1983), explained that this language "expressly demands that the party recovering judgment be awarded costs. This unambiguous language need not be construed. " (emphasis added).

Valerie points out that while the "prevailing party" and the "party recovering judgment" will frequently be the same party, circumstances may arise in which that is not the case. For example, a party may prevail on some, but not all counts or causes of action, or it may be difficult to discern which party prevails where a non-monetary judgment is entered.

In Hendry Tractor , the supreme court clarified that "a plaintiff in a multicount personal injury action who recovers [a] money judgment on at least one but not all counts in the cause of action, is the ‘party recovering judgment’ for purposes of section 57.041(1), Florida Statutes (1979), and therefore is entitled to recover costs." Id. As such, the argument that a defendant prevailed in defense of a failed count does not appear to entitle the defendant to costs, where the plaintiff nevertheless prevailed on at least one other count.

Although not discussed by the parties in their briefs, we note that in Folta v. Bolton , 493 So. 2d 440 (Fla. 1986), the supreme court clarified the holding of Hendry Tractor to apply to claims "arising out of a single set of circumstances." Id. at 442. In Folta , the court addressed a multicount medical malpractice action in which the claims involved two unrelated injuries which could have been filed as separate actions because the fact patterns of the injuries were different. Id. at 441. Joinder was proper because some of the defendants were common to both injuries. Id. Notably, the court wrote:

Although section 57.041 provides for costs to "the party recovering judgment" and section 768.56 [addressing fees and costs in medical malpractice actions] provides for "prevailing party" attorney fees, we concede that the same principles should be applied under each provision.

Id. at 442 (emphasis added). In the next paragraph, the court explained that the holding in Hendry Tractor was guided by the procedural posture of the case, pointing out that under the modern pleading rules, alternative pleading of causes of action arising out of the same transaction is permitted, which is the reason the court did not follow its prior holding in Marianna Mfg. Co. v. Boone , 55 Fla. 289, 45 So. 754 (1908). Id. Importantly, the court said:

In Marianna Mfg. Co. , we concluded that "[w]here the verdict is in effect for the defendant on any one or more of the counts of a declaration the costs should be taxed as the statute and rules direct." 55 Fla. at 291, 45 So. at 755.

Id. (alteration in original). What is important to note is that Marianna Mfg. Co. involved an action alleging two counts for breach of contract concerning two different breaches of contract. Marianna Mfg. Co. , 45 So. at 754. Marianna Mfg. also held that a verdict which was silent as to one count constituted a verdict in favor of the defendant as to that count. Id. at 754-55.

Although there is language in Folta suggesting that "the party recovering judgment" and "prevailing party" are equivalent standards, we focus on the language in Folta affirming the principle in Hendry Tractor that an award of costs (as distinct from fees) should focus on who obtained a judgment in multicount actions seeking relief on...