In my last post, I discussed the Second District Court of Appeal’s recent analysis of a joint Offer of Judgment served on a general contractor by property owners in a construction lien case, based upon the en banc opinion in the consolidated cases of Richard O. Wolfe, II and H. Michelle Wolfe v. Culpepper Constructors, Inc., Case No. 2D10-3228 and Culpepper Constructors, Inc. v. Richard O. Wolfe, II and Michelle Wolfe, Case No. 2D10-3670, 37 FLW D2708. In this post, I will discuss the Court’s analysis of the contractor’s request for an award of costs in that same case based upon the net judgment entered in its favor.
The dispute in the Wolfe case arose from Culpepper Constructor’s construction of an addition to and remodeling of a residence owned by Mr. and Mrs. Wolfe. Culpepper, the general contractor on the project, issued its final invoice to Mr. and Mrs. Wolfe in the amount of $91,261.65. Mr. and Mrs. Wolfe refused to pay, claiming that Culpepper had overcharged them for work performed. In response, Culpepper recorded a claim of lien against the property and initiated a construction lien foreclosure action. Mr. and Mrs. Wolfe, in turn, filed a Counterclaim against Culpepper. The case proceeded to trial and the jury found that Culpepper had provided work to Mr. and Mrs. Wolfe with a value of $97,261.65, but also found for Mr. and Mrs. Wolfe on some of their counterclaims, resulting in a net judgment to Culpepper in the amount of $9,074.06.
Since it had obtained a net judgment (in the amount of $9,074.06), Culpepper requested an award of its costs based upon, among other authority, Fla. Stat. §57.041(1), which provides, in relevant part, as follows:
The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment … .
The trial court determined that it had to deny this request (as well as Mr. and Mrs. Wolfe’s request for an award of costs) because each party was awarded something and, therefore, neither was the prevailing party.
The Second District Court of Appeal began its analysis by receding from its prior decision in Spring Lake Improvement District v. Tyrrell, 868 So.2d 656 (Fla. 2d DCA 2004). Specifically, the Court stated that it had erred in Spring Lake by applying the “prevailing party” standard set forth in Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla. 1992), when determining entitlement to costs pursuant to Fla. Stat. §57.041(1). The Court determined that it should, instead, rely upon the plain language of the statute and the decision in Hendry Tractor Co. v. Fernandez, 432 So.2d 1315 (Fla. 1983). In Hendry, the Florida Supreme Court found that the language of Fla. Stat. §57.041(1) is clear and that it unambiguously requires entry of an award of costs to the “party recovering judgment.” The Court noted that Moritz, relied upon in Spring Lake and by the trial court in Wolfe, dealt with determination of the prevailing party for purposes of an award of attorneys’ fees (not costs). In receding from Spring Lake and ruling that the party that recovers judgment, rather than the prevailing party, is the party that is entitled to an award of costs pursuant to Fla. Stat. §57.041(1), the Court noted that it is now aligned with the First District Court of Appeal’s holding in Bessey v. Difilippo, 951 So.2d 992 (Fla. 1st DCA 2007). Based upon that reasoning, the Second District determined that Culpepper Constructors was entitled to an award of its costs.
In Wolfe v. Culpepper Constructors, Inc., the Second District Court of Appeal has clarified that the plain language of Fla. Stat. §57.104 mandates that the party who recovers judgment (not the prevailing party) is the party that is entitled to an award of its costs pursuant to Fla. Stat. §57.041(1). Wolfe is certain to be an important and often-cited case with respect to joint offers of judgment and awards of costs.
David Greene is a partner with the law firm of Fox Rothschild LLP. David represents clients in a variety of commercial litigation matters in State and Federal Courts throughout Florida. David can be contacted at (561) 804-4441 or email@example.com.