VARVERIS v. CARBONELL (2001)

On Motion For Review

Alberto Carbonell filed a motion to review a judgment awarding Marie Lydia Varveris appellate costs following remand in Varveris v. Carbonell, 773 So.2d 1275 (Fla. 3d DCA 2000).   We grant the motion and reverse the judgment.

 Pursuant to Florida Rule of Appellate Procedure 9.400(a), the prevailing party on appeal is entitled to entry of a costs judgment.   To award costs, the “trial court must determine which party prevailed on the significant issues on appeal․” Florida Power & Light v. Polackwich, 705 So.2d 23, 25 (Fla. 2d DCA 1997);  Lucas v. Barnett Bank of Lee County, 732 So.2d 405 (Fla. 2d DCA 1999);  Stringer v. Katzell, 695 So.2d 369 (Fla. 4th DCA 1997);  James v. James, 675 So.2d 683 (Fla. 3d DCA 1996).  “[C]osts do not automatically ‘follow the judgment.’ ”  Polackwich, 705 So.2d at 25 (citing General Capital Corp. v. Tel Serv. Co., 239 So.2d 134 (Fla. 2d DCA 1970)).

In our view, the Varveris did not prevail on the significant issues litigated on appeal and was not entitled to a costs judgment.   Varveris did not prevail in dissolving the injunction against her;  in Varveris we only remanded the cause so that the appellant could be served with process.   Hence, the costs judgment was an abuse of discretion.

Motion granted;  judgment reversed.

Respectfully, I cannot agree that Alberto M. Carbonell, P.A., was the prevailing party in the underlying appeal.

Carbonell obtained a judgment which ordered the sheriff to sell a substantial parcel of real estate owned by Marie Varveris in order to satisfy a judgment.   Carbonell had obtained judgment against Alexander Varveris, Marie's husband.   Carbonell impled Marie and obtained a judgment determining that Marie had received the real estate as a fraudulent conveyance.

On appeal, this court reversed the judgment because Carbonell had not obtained personal jurisdiction over Marie.   This ruling was without prejudice to Carbonell to obtain service over Marie by any available means.   This court also left in place a temporary injunction which prohibited any disposition of the property pending completion of the fraudulent conveyance proceedings.

Before the appeal, Carbonell had a foreclosure judgment ordering the property to be sold.   After the appeal, Carbonell must go back and start over.   The significant issue on the appeal was whether Varveris' property would be sold, and she won that issue.

The fact that we left the temporary injunction in place does not change the analysis.   The temporary injunction is an interim remedy to preserve the status quo.   The real issue on the prior appeal was whether Varveris' real estate would be sold, and this court's answer to that question was no.

Judge Siegel was entirely correct in ruling that Marie Varveris was the prevailing party in the appeal.   The motion for review of the cost judgment should be denied.

PER CURIAM.

GODERICH and SHEVIN, JJ., concur. COPE, J., dissents.