GENERAL CAPITAL CORPORATION, Petitioner,
v.
TEL SERVICE CO., Inс., a Florida Corporation, G.E. Grass and Richard A. Noll, Respondents.
District Court of Appeal of Florida, Second District.
*135 Edward I. Cutler, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for petitioner.
William B. Holland, of Jollay & Holland, Winter Haven, E.A. Bosarge, Bartow, and Sinclair & Louis, Miami, for respondents.
PIERCE, Judge.
This case is here upon petition of General Capital Corporation to review the judgment for costs entered by the trial Court.
The previous history of this litigation has been adequately depicted in this Court's previous opinion reported in
It is unnecessary here to rеview the vast complex and complicated entanglements evolving out of the previous dealings and litigation between the parties. Suffice to say that the original final decree in the lower Court held certain transactions to be criminally usurious loans in violation of Florida Statutes and directed recovery by Tel Service of well over a half million dollars plus interest from General Capital. Appeal to this Court was taken from said decree by General Capital, and while the appeal was pending the Florida legislature in 1965 enacted a statute the effect of which was to materially reducе the amount of the judgment to which Tel Service was otherwise entitled. The legal applicability of the intervening legislation was upheld and the final result of the litigation was as stated.
After the parties had exhаusted their litigious efforts on the merits, General Capital filed in the trial Court motion for allowance of Court costs, claiming only items incurred subsequent to the first appeal to this Court wherein the original final decrеe was affirmed. The trial Court entered order awarding a judgment for costs in favor of General Capitаl but limited the amount thereof to a one year's premium on a supersedeas bond which General Capital posted incident to the appeal from this Court to the Supreme Court. All other claimed items were disallowed because, in the opinion of the trial Judge, General Capital on the appeals "prevailed only because of the intervening legislation". In other words, both appellatе Courts upheld the lower Court in entry of its original final decree, and therefore absent intervening legislation, General Capital would have lost its appeals in toto. By petition filed here under Rule 3.16 FAR, 32 F.S.A., General Caрital seeks review of said order. We affirm.
In the main, General Capital relies upon the formal, sterеotyped verbiage contained in the mandates from this Court to the Circuit Court and from the Supreme Court to this Court, reciting in general language that General Capital "do have and recover of and from" Tel Service "costs in this behalf expended". The old cases bearing upon the subject of costs tend to regard such or comparable language in a mandate to be mandatory upon the lower Cоurt.
But the modern view is somewhat relaxed from such dogmatic approach. This is especially true in thе light of Rule 3.16, subd. b FAR, which provides that "all costs including appellate costs shall be taxed in the lower cоurt pursuant to law." Thus, the assessment of costs, even appellate costs, lies with the trial Court and is *136 largely discretionary, not to be disturbed on review in absence of a clear showing of abuse. Abdo v. City of Daytоna Beach, Fla.App. 1963,
And in exercising that discretion, the imposition of such costs does not necеssarily "follow the judgment". Special circumstances in an individual case might dictate a contrary aрportionment. The justice of the cause, in the light of all the circumstances involved, is the governing criterion. See 8 Fla.Jur. p. 47. Here General Capital was able to salvage well over half a million dollars from an otherwise valid judgment entered against it merely because the legislature saw fit to pass a 3-sentence act after such judgment had been entered.
As before stated, the Chancellor predicated his instant costs order upon the proposition that General Capital ultimately prevailed in the overall litigation "only because of the intervening legislation". The point is without precedent in Flоrida; in fact, our independent research has revealed only two cases in the country where the precise point was involved, the Kentucky case of State Board, etc. v. Hays, (1921)
On the instant petition to review, the burden was on General Capital to clearly demonstrate that the trial Judge erroneously allocated the costs on appeal. This the petitioner has failed to do and therefore the petition to review must be denied and the challenged order upheld.
So ordered.
LILES, Acting C.J., and MANN, J., concur.