The Fourth District Court of Appeal ruled en banc, finding that a prevailing party statute had been wrongly applied in a Broward Circuit case. Courtesy photo.

The Fourth District Court of Appeal found a prevailing-party standard had been wrongly applied in a dispute over ownership of a Pembroke Pines property, when it reversed a denial of costs in an en banc opinion.

The entire court ruled in an effort to break away from what it said was conflicting language in its prior opinions, and the case drew a special concurrence and a partial dissent.

The ruling clarified that when it comes to awarding costs, the "prevailing party" and the "party recovering judgment" are not always the same thing.

In this case, Broward Circuit Judge Carlos Augusto Rodriguez had reasoned that both sides should foot their own bills, as his final judgment didn't necessarily favor one over the other.

But the Fourth DCA disagreed, finding that although the plaintiff hadn't collected damages, she had recovered a judgment, and so was entitled to costs.

What happened?

Ruth Sherman created a 10-year irrevocable trust for the house she lived in with her son Myron Sherman, according to the opinion. But when Sherman died—more than 10 years later—her daughter Valerie Sherman sued Myron Sherman, arguing that the court should divide the property between them, as co-trustees. Myron Sherman responded with a counterclaim that he was the sole owner of the house.

After a trial, the court found no evidence for damages on either side, but granted Valerie Sherman's request for a declaratory judgment, finding that the irrevocable trust had expired and should be liquidated and dispersed to both parties, as the named beneficiaries. The court found the house could only be partitioned by selling it.

The final judgment said Valerie Sherman would pay costs, fees and other expenses in advance, which would be reimbursed by the clerk of courts when the property sold. But the final paragraph of that order said, "Other than as indicated herein, each party to bear their own costs and attorney fees."

Valerie Sherman moved to amend the order, arguing the court should delete that paragraph because, as the party recovering a judgment, she was statutorily entitled to costs from her brother under Florida Statute section 57.041(1).

Attorneys 'led the court astray'

Fourth DCA Judge Burton Conner concurred specially, with an opinion that said attorneys for both parties "led the trial court astray by either failing to discover and alert the trial court or, worse yet, ignoring that the partition statute has a provision addressing costs."

But the matter wasn't fully put to rest.

Judge Martha Warner agreed with the outcome but dissented in part with an opinion that said Florida Supreme precedent does allow trial court discretion in allocating costs in equitable actions. She also pointed out, backed by Judges Robert Gross and Carole Taylor, that the declaratory judgment and partition statutes each have their own cost provisions.

Valerie Sherman's attorney Elliot L. Miller in Miami Beach said he disagreed with those two opinions because they dwelled on the partition aspects of the case, when in his view, the litigation revolved more around the issue of trust administration.

But Miller said he and his client were gratified with what he thought was a well-reasoned ruling.

"It's good that the appellate court saw fit to write as extensively as it did on the sensitive and confusing area of costs, as to which there had been some uncertainty in the status of the law previously," Miller said.

It's been quite a fight, according to Miller, with litigation stretching for seven years.

"Every case has a beginning, a middle and an end," Miller said. "This case had an extraordinary middle."

Myron Sherman's attorney, Jeffrey M. Weissman of Weissman & Dervishi in Fort Lauderdale, did not respond to a request for comment by deadline.

Read the court opinion:

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