Thornburg v. Pursell, 84-2601
| Citation | 10 Fla. L. Weekly 2345,476 So.2d 323 |
| Decision Date | 11 October 1985 |
| Docket Number | No. 84-2601,84-2601 |
| Parties | 10 Fla. L. Weekly 2345 Carl J. THORNBURG and Barbara Ann Thornburg, husband and wife, individually and as parents and natural guardians of Carl Douglas Thornburg, a minor, Appellants/Cross-Appellees, v. Horace PURSELL, Patricia Pursell, Joseph Pursell, Michelle Woolever, Flavius Johnson, Gregory Pursell, Joni Pursell, Terry Pursell, George Hill and Mary Hill, d/b/a Fifty's Fantasy and/or Family Entertainment Center, and the City of Arcadia, a municipal corporation, Appellees/Cross-Appellants. |
| Court | Court of Appeal of Florida (US) |
Arnold R. Ginsberg of Horton, Perse & Ginsberg and Bruce L. Scheiner, & Associates, Miami, for appellants/cross-appellees.
James H. Burgess, Jr., of Syprett, Meshad, Resnick & Lieb, P.A., Sarasota, for appellee/cross-appellant, City of Arcadia.
James M. Beesting of Beesting & Beesting, Arcadia, for appellees/cross-appellants Horace Pursell, Patricia Pursell, Joseph Pursell, Michelle Woolever, Flavius Johnson, Gregory Pursell, Joni Pursell, Terry Pursell, George Hill and Mary Hill, d/b/a Fifty's Fantasy and/or Family Entertainment Center.
Carl J. Thornburg and Barbara Ann Thornburg, plaintiffs in a personal injury action, appeal from the trial court's denial of their motions to tax costs. The City of Arcadia, one of the defendants in the action, cross-appeals the court's denial of its motion to tax costs. We affirm in part and reverse in part.
This is the second time this case has been appealed, and there have been two trials. In the first trial, the jury returned a verdict in the amount of $575.00. Several of the defendants moved to tax costs against the plaintiffs, and the plaintiffs moved for a new trial. The trial court denied the motion for new trial and granted the defendants' motion to tax costs. The plaintiffs appealed, and we ordered a new trial on the issue of damages. Thornburg v. Pursell, 446 So.2d 713 (Fla. 2d DCA 1984).
On remand, a second trial was held and a final judgment in the sum of $2000.00 was entered in favor of the plaintiffs. The plaintiffs and the city both filed motions to tax costs. The trial court denied the city's motion to tax costs for the second trial and denied the plaintiffs' motion to tax costs for the first trial, the first appeal, and the second trial held upon remand. This appeal timely followed.
The plaintiffs concede they are not entitled to costs incurred in the first appeal because their motion for appellate costs was not filed within thirty days as required by Florida Rule of Appellate Procedure 9.400(a).
The plaintiffs first contend that the trial court erred in denying their motion to tax costs incurred in the first trial. The court, in denying the plaintiff's motion, explained that the cost judgment entered in favor of the defendants stood as the law of the case because the plaintiffs failed to appeal that cost judgment. We disagree. In the first appeal, we reversed and ordered a new trial on the issue of damages. Where a judgment is reversed on appeal, it is not proper to allow a cost judgment pending the outcome of the matter on remand. Giovannielli v. Lacedonia, 179 So.2d 407 (Fla. 3d DCA 1965). The trial court therefore erred in affirming the cost judgment entered in favor of the defendants in the first trial because the judgment upon which it was predicated was reversed on appeal. Standard Guaranty Insurance Co. v. Geeting, 355 So.2d 819 (Fla. 2d DCA 1978). The trial court also erred in denying the plaintiffs' motion to tax costs incurred in the first trial because, upon remand, the plaintiffs were the prevailing party in the action. § 57.041, Fla.Stat. (1983).
The plaintiffs next correctly contend that the trial court erred in denying their motion to tax costs incurred in the second trial. The court denied the motion because the plaintiffs' recovery was not more favorable than the defendants' collective offers of judgment. We find the trial court erred in considering the defendants' offers collectively.
Florida Rule of Civil Procedure 1.442 allows a party defending against a claim to serve an offer of judgment on the adverse party anytime more than ten days before trial begins. The portions of the rule pertinent to resolution of the controversy before us are as follow:
An offer not accepted shall be deemed withdrawn and evidence of it is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay...
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