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Prevailing party on appeal entitled to costs and fees

Tenant appealed the denial of her section 8 benefits and won.  Tenant filed for her appellate costs and fees and was denied by the trial court.  Tenant appealed the denial and the  appellate division of the circuit court denied the motion for review, stating that the appellate division had lost jurisdiction once the appellate division had ruled.  Tenant appealed this denial  to the court of appeals.   The court of appeals ruled that as tenant  was the prevailing party in the appellate division of the circuit court, she was entitled to her appellate costs. See Philip J. Padovano, Florida Appellate Practice § 20.2, at 397 (2007-08 ed.).

Under Florida Rule of Appellate Procedure 9.400(a), a party may serve a motion to tax costs within thirty days after the issuance of the mandate. Thus, by its terms, rule 9.400(a) authorizes proceedings for appellate costs to take place after the mandate has issued. Appellate costs are taxed by the lower tribunal.

A party may challenge a denial of appellate costs by filing a motion for review in the appellate court within thirty days. Fla. R.App. P. 9.400(c); Philip J. Padovano, Florida Appellate Practice § 20.7, at 410-11. Tenant  timely filed her motion for review in the appellate division.

The circuit court appellate division had jurisdiction to consider Martin’s motion for review. It was incorrect to deny the motion for review on the theory that the appellate division had lost jurisdiction once the mandate issued.

“[A] party may file a petition for writ of mandamus to correct an erroneous decision that a lower tribunal is without jurisdiction.” Philip J. Padovano, Florida Appellate Practice § 28.2, at 685 (footnote omitted); Pino v. Dist. Ct. of App., Third Dist., 604 So.2d 1232, 1233 (Fla.1992). The appellate division must reinstate tenant’s motion for review, and proceed to consider the motion.

MARTIN v.  HIALEAH HOUSING AUTHORITY, District Court of Appeal of Florida, Third District. January 30, 2008. 972 So.2d 1113. .

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