BERNSTEIN v. NEW BEGINNINGS TRUSTEE LLC (2008)

District Court of Appeal of Florida,Fourth District.

Jeffrey BERNSTEIN and Wendie Bernstein, Appellants, v. NEW BEGINNINGS TRUSTEE, LLC, Appellee.

Nos. 4D07-4007, 4D07-4969.

Decided: November 19, 2008

James A. Bonfiglio of Law Offices of James A. Bonfiglio, P.A., Boynton Beach, for appellants. Edward F. Holodak of Edward F. Holodak, P.A., Hollywood, for appellee.

On Motion to Review Order Taxing Costs

The motion to review the order denying appellate costs is granted. The court's denial of appellate costs is reversed. Although the assessment of attorney's fees may be deferred until the determination of a prevailing party, the assessment of costs is not likewise deferred. See Lucas v. Barnett Bank of Lee County, 732 So.2d 405 (Fla. 2d DCA 1999). As the appellants prevailed on the significant issues of the appeal, they are entitled to recover their costs on appeal.

Contrary to the appellee's position, this court's order denying the motion to tax costs did not deny costs on the merits but merely denied the motion because motions to tax appellate costs must be made in the trial court with review by this court of any order entered. See Fla. R.App. P. 9.400(a), (c). Our order of denial was without prejudice to file a motion to tax costs with the trial court.

We remand for determination and assessment of appellants' costs on appeal.

PER CURIAM.

WARNER, POLEN and TAYLOR, JJ., concur.

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