Kaelbel Wholesale, Inc. v. Soderstrom

District Court of Appeal of Florida

Kaelbel Wholesale, Inc. v. Soderstrom

810 So. 2d 1065, 2002 Fla. App. LEXIS 3606, 2002 WL 423455

CourtDistrict Court of Appeal of Florida

DecidedMarch 20, 2002

DocketNo. 4D99-406

StatusPublished

Cited by1 cases

This text of 810 So. 2d 1065 (Kaelbel Wholesale, Inc. v. Soderstrom) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kaelbel Wholesale, Inc. v. Soderstrom, 810 So. 2d 1065, 2002 Fla. App. LEXIS 3606, 2002 WL 423455 (Fla. Ct. App. 2002).

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Opinion

WARNER, J.

We review the denial of a motion taxing appellate costs. The trial court denied the motion based upon our decision in Mulato v. Mulato, 734 So.2d 477, 478 (Fla. 4th DCA 1999),¹ in which we stated that a motion to tax costs must be filed within 30 days after the issuance of the mandate. We cited Florida Rule of Appellate Procedure 9.400(a). However, the statement in Mulato was obviously an inadvertent error, as the rule states “[c]osts shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.” (Emphasis added). Clearly, this court was relying on the rule and not attempting to rewrite it, a power which we do not have.²

While Thornburg v. Pursell, 476 So.2d 323, 324 (Fla. 2d DCA 1985), also refers to “file” instead of “serve” the motion to tax costs, we do not certify conflict because the reference was not a holding, and it is obvious that Thornburg made the same mistake that we did in Mulato.

The motion to review is granted, and the order denying the motion to tax appellate costs is reversed.

STONE and GROSS, JJ., concur.

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WARNER, J.

We review the denial of a motion taxing appellate costs. The trial court denied the motion based upon our decision in Mulato v. Mulato, 734 So.2d 477, 478 (Fla. 4th DCA 1999),¹ in which we stated that a motion to tax costs must be filed within 30 days after the issuance of the mandate. We cited Florida Rule of Appellate Procedure 9.400(a). However, the statement in Mulato was obviously an inadvertent error, as the rule states “[c]osts shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.” (Emphasis added). Clearly, this court was relying on the rule and not attempting to rewrite it, a power which we do not have.²

While Thornburg v. Pursell, 476 So.2d 323, 324 (Fla. 2d DCA 1985), also refers to “file” instead of “serve” the motion to tax costs, we do not certify conflict because the reference was not a holding, and it is obvious that Thornburg made the same mistake that we did in Mulato.

The motion to review is granted, and the order denying the motion to tax appellate costs is reversed.

STONE and GROSS, JJ., concur.

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Bluebook (online)

810 So. 2d 1065, 2002 Fla. App. LEXIS 3606, 2002 WL 423455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaelbel-wholesale-inc-v-soderstrom-fladistctapp-2002.

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