Markin v. Markin

District Court of Appeal of Florida

Markin v. Markin

953 So. 2d 13, 2007 Fla. App. LEXIS 1814, 2007 WL 461394

CourtDistrict Court of Appeal of Florida

DecidedFebruary 14, 2007

DocketNos. 4D02-4214, 4D03-465

StatusPublished

Cited by3 cases

This text of 953 So. 2d 13 (Markin v. Markin) 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.

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Markin v. Markin, 953 So. 2d 13, 2007 Fla. App. LEXIS 1814, 2007 WL 461394 (Fla. Ct. App. 2007).

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Opinion

On Motion for Review of Order on Former Husband’s Motion to Tax Appellate Costs

PER CURIAM.

Susan Markin, the former wife, seeks review of a trial court order¹ under Florida Rule of Appellate Procedure 9.400(c). This order awarded David Markin, the former husband, costs totaling $171,649² for the appeal of the final judgment of dissolution in this case, see Markin v. Markin, 896 So.2d 814 (Fla. 4th DCA 2005). Susan Markin contends that the trial court erred by awarding David Markin appellate costs, because he was not the prevailing party on appeal. David Markin did not respond to Susan Markin’s motion within the time permitted by the appellate rules. We agree with Susan Markin that the trial court erred and reverse the order, see Gerhardt v. Gerhardt, 738 So.2d 485 (Fla. 4th DCA 1999)(reversing, rather than quashing, trial court' order under Rule 9.400(c) review).

Florida Rule of Appellate Procedure 9.400(a) provides that appellate costs “shall be taxed in favor of the prevailing [15]*15party unless the court orders otherwise.” In determining whether a party was the prevailing party in an appeal, the test articulated in Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992), applies. See N. Am. Van Lines, Inc. v. Ferguson Transp., Inc., 662 So.2d 1275, 1276 (Fla. 4th DCA 1995). Moritz defines the prevailing party for purposes of attorney’s fees and costs as “the party prevailing on the significant issues.” 604 So.2d at 810.

In the trial court order awarding appellate costs to David Markin, the trial court misstated the applicable legal standard in its analysis. The trial court wrote that: “A party need only prevail on a significant issue in an appeal to be entitled to recover appellate costs.” (Emphasis added). However, the Moritz standard requires that a party prevail on “the significant issues.” (Emphasis added). Although the trial court properly found that David Markin prevailed on an issue on appeal, that being a credit for post-judgment alimony against the amount of the final judgment, the trial court did not determine that he prevailed on “the significant issues” on appeal.

Undoubtedly a credit of $1.2 million would be considered significant by many people, but in the scheme of this particular case, the issue was rather insignificant indeed. David Markin’s appeal of the final judgment of dissolution was unsuccessful in upsetting the final judgment in any regard, still requiring him to pay Susan Markin an equitable distribution equalizing payment of $33,106,816. By obtaining the credit on appeal, Markin merely was given credit for the sum of money that he had remitted toward the full equalizing payment. His obligations under the final judgment were in no way reduced. In other words, he obtained no relief from the total amount he was required to pay, let alone relief that could be classified as significant.

Therefore, by applying the Moritz standard to the circumstances of this case, we conclude that David Markin was not the prevailing party on “the significant issues” on appeal for purposes of an award of appellate costs. Consequently, we reverse the trial court order awarding appellate costs to David Markin and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

STEVENSON, C.J., GUNTHER and STONE, JJ., concur.

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On Motion for Review of Order on Former Husband’s Motion to Tax Appellate Costs

PER CURIAM.

Susan Markin, the former wife, seeks review of a trial court order¹ under Florida Rule of Appellate Procedure 9.400(c). This order awarded David Markin, the former husband, costs totaling $171,649² for the appeal of the final judgment of dissolution in this case, see Markin v. Markin, 896 So.2d 814 (Fla. 4th DCA 2005). Susan Markin contends that the trial court erred by awarding David Markin appellate costs, because he was not the prevailing party on appeal. David Markin did not respond to Susan Markin’s motion within the time permitted by the appellate rules. We agree with Susan Markin that the trial court erred and reverse the order, see Gerhardt v. Gerhardt, 738 So.2d 485 (Fla. 4th DCA 1999)(reversing, rather than quashing, trial court' order under Rule 9.400(c) review).

Florida Rule of Appellate Procedure 9.400(a) provides that appellate costs “shall be taxed in favor of the prevailing [15]*15party unless the court orders otherwise.” In determining whether a party was the prevailing party in an appeal, the test articulated in Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992), applies. See N. Am. Van Lines, Inc. v. Ferguson Transp., Inc., 662 So.2d 1275, 1276 (Fla. 4th DCA 1995). Moritz defines the prevailing party for purposes of attorney’s fees and costs as “the party prevailing on the significant issues.” 604 So.2d at 810.

In the trial court order awarding appellate costs to David Markin, the trial court misstated the applicable legal standard in its analysis. The trial court wrote that: “A party need only prevail on a significant issue in an appeal to be entitled to recover appellate costs.” (Emphasis added). However, the Moritz standard requires that a party prevail on “the significant issues.” (Emphasis added). Although the trial court properly found that David Markin prevailed on an issue on appeal, that being a credit for post-judgment alimony against the amount of the final judgment, the trial court did not determine that he prevailed on “the significant issues” on appeal.

Undoubtedly a credit of $1.2 million would be considered significant by many people, but in the scheme of this particular case, the issue was rather insignificant indeed. David Markin’s appeal of the final judgment of dissolution was unsuccessful in upsetting the final judgment in any regard, still requiring him to pay Susan Markin an equitable distribution equalizing payment of $33,106,816. By obtaining the credit on appeal, Markin merely was given credit for the sum of money that he had remitted toward the full equalizing payment. His obligations under the final judgment were in no way reduced. In other words, he obtained no relief from the total amount he was required to pay, let alone relief that could be classified as significant.

Therefore, by applying the Moritz standard to the circumstances of this case, we conclude that David Markin was not the prevailing party on “the significant issues” on appeal for purposes of an award of appellate costs. Consequently, we reverse the trial court order awarding appellate costs to David Markin and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

STEVENSON, C.J., GUNTHER and STONE, JJ., concur.

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953 So. 2d 13, 2007 Fla. App. LEXIS 1814, 2007 WL 461394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markin-v-markin-fladistctapp-2007.

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