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Sherman v. Sherman

Florida Court of Appeals, Fourth District

September 25, 2019


         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carlos Augusto Rodriguez, Judge; L.T. Case No. CACE-11-26900 (09).

          Elliot L. Miller, Miami Beach, for appellant.

          Jeffrey M. Weissman of Weissman & Dervishi, P.A., Fort Lauderdale, for appellee.

         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.


         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 ...

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