VALERIE K. SHERMAN, Appellant,
MYRON K. SHERMAN, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos Augusto Rodriguez, Judge; L.T. Case
No. CACE-11-26900 (09).
L. Miller, Miami Beach, for appellant.
Jeffrey M. Weissman of Weissman & Dervishi, P.A., Fort
Lauderdale, for appellee.
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.
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
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.
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
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.
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).
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
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
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
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