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Hawks v. Libit

Florida Court of Appeals, Second District

July 25, 2018

ANTHONY HAWKS, Appellant,
v.
JEANNE ELLEN LIBIT, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Sarasota County; Andrea McHugh, Judge.

          Anthony Hawks, pro se.

          John J. Waskom of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellee.

          KHOUZAM, JUDGE.

         Attorney Anthony Hawks, pro se, timely appeals the circuit court's final judgment awarding costs to his former client, Jeanne Ellen Libit. Relying on this court's en banc opinion in Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132 (Fla. 2d DCA 2012), Hawks argues that the trial court erred by awarding costs to Libit as the "prevailing party" and failing to award costs to Hawks as the "party recovering judgment." We agree. Accordingly, we reverse and remand for costs to be awarded in Hawks' favor.

         I. Facts

         Hawks represented Libit in a family trust dispute. When he was discharged before the suit was resolved, he filed a notice and claim of attorney's charging lien pending final resolution of the underlying action. Hawks claimed that Libit owed him $159, 431.20 for legal services and costs pursuant to a written engagement letter.

         A settlement agreement was reached in the underlying action. Before the agreement was approved by the court, Libit filed a petition to set aside $225, 200 in a restricted depository "to ensure that attorney Hawks [would] not be prejudiced by Court approval of the settlement agreement." The court granted Libit's petition and approved the depository.

         After the settlement was approved and the suit was dismissed with prejudice, Hawks filed a petition for attorney's fees and motion to enforce charging lien, seeking payment of $159, 431.20. The court granted Hawks' petition and motion but found that Hawks was entitled to fees in the amount of $37, 053.42. This court has affirmed the award. See Hawks v. Libit, No. 2D17-2230 (Fla. 2d DCA Feb. 9, 2018) (table decision).

         Hawks filed a motion for $3254.99 in costs pursuant to section 57.041(1), Florida Statutes (2016). Libit opposed the motion and filed her own motion seeking costs as the prevailing party under the same statutory section. The court denied Hawks' motion and granted Libit's, finding that Libit was the prevailing party in Hawks' fee claim because he was awarded significantly less than the amount he sought. The court relied on the interpretation and application of section 57.041(1) found in Wyatt v. Milner Document Products, Inc., 932 So.2d 487, 490 (Fla. 4th DCA 2006), abrogated on other grounds in Westgate Miami Beach, LTD. v. Newport Operating Corp., 55 So.3d 567 (Fla. 2010). Moreover, the court concluded that it had discretion to award costs to Libit because Hawks' fee claim was equitable in nature. Ultimately, the court ordered Hawks to pay Libit $7418.80 in costs. Hawks moved to alter or amend the final judgment, arguing that the court erred in failing to follow Wolfe. After the court denied his motion to amend, Hawks appealed.

         I. Analysis

         Hawks and Libit both sought costs pursuant to section 57.041(1), which provides that "[t]he party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment." In the 2012 Wolfe opinion, this court, sitting en banc, held that the plain language of this section requires that the "party recovering judgment"-as opposed to the "prevailing party" (though oftentimes a party will be both)-is entitled to an award of costs. Id. at 1137. This court relied on the Florida Supreme Court's decision in Hendry Tractor Co. v. Fernandez, 432 So.2d 1315 (Fla. 1983):

In Hendry Tractor, the supreme court reviewed the operation of section 57.041(1), Florida Statutes (1979), which then, as now, provided that the party "recovering judgment" recover all legal costs and charges. The court found the statute's language to be clear. "The statute expressly demands that the party recovering judgment be awarded costs. This unambiguous language need not be construed. Rather, it should be applied as is to the given situation." Hendry Tractor, 432 So.2d at 1316. In guiding the lower courts in the application of the statute, the court stated "that a plaintiff in a multicount personal injury action who recovers money judgment on at least one but not all counts in the cause of action, ...

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