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Florida Fourth DCA rules that standard for entitlement to costs under F.S. § 57.041(1) is whether cost claimant is "party recovering judgment" rather than "prevailing party" and applies in equity cases where costs are claimed under the statute

On September 25, 2019, in Sherman v. Sherman, No. 4D18-3578, the Florida Fourth DCA, sitting en banc, receded from a conflicting previous decision and ruled that under § 57.041(1), Florida Statutes, the determination of the party entitled to the award of costs is governed by the “party recovering judgment” standard rather than the “prevailing party” standard.  The “party recovering judgment” standard conforms to the exact wording in the statute. The Fourth DCA noted that the Florida Supreme Court has explained that this language “expressly demands that the party recovering judgment be awarded costs. This unambiguous language need not be construed.” Hendry Tractor Co. v. Fernandez, 432 So. 2d 1315, 1316 (Fla. 1983). The Fourth DCA acknowledged that it had in the past interchangeably used the two standards as if they are equivalent in application but there are many instances where they are not. For example, in Hendry Tractor, the Florida 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) . . .”  The Fourth DCA observed that the First, Second and Third DCAs have similarly clarified that the “party recovering judgment” standard is to be applied instead of the “prevailing party” standard. However, the Fourth DCA observed that since the standard applies collectively to claims “arising out of a single set of circumstances, quoting Folta v. Bolton, 493 So. 2d 440, 442 (Fla. 1986), the possibility remains that in cases involving claims arising out of different circumstances, both the plaintiff and the defendant could be entitled to costs. Finally, the Fourth DCA ruled that the same standard applies in equity cases where costs are claimed under the statute unless there is a specific statutory exception, such as the provision specifically excepting executors and administrators from liability for costs.

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