NEWELL v. MOORE, 1D99-4569 (Fla.App. 1 Dist. 5-22-2002)

Case No. 1D99-4569.District Court of Appeal of Florida, First District.
Opinion filed May 22, 2002.

An appeal from Circuit Court for Leon County. P. Kevin Davey, Judge.

Michael Newell, Pro Se.

Robert A. Butterworth, Attorney General, and Caryl S. Kilinski, Assistant Attorney General, Tallahassee, for Appellee.

ALLEN, C. J.

This proceeding is before us upon a motion for review pursuant to Florida Rule of Appellate Procedure 9.400(c), by which the appellant challenges a trial court order denying a Florida Rule of Appellate Procedure 9.400(a) motion for costs relating to his earlier appeal. In that appeal this court determined that the appellant had made a facially sufficient claim under Florida Rule of Civil Procedure 1.540(b), and this court reversed the trial court’s denial of that motion. See Newell v.Moore, 789 So.2d 538 (Fla. 1st DCA 2001). In thereafter denying the rule 9.400(a) costs motion the trial court found that the appellant is not entitled to such relief because he did not prevail on the merits of his earlier claim. But a rule 9.400(a) costs award does not depend on a party’s ultimate success on the merits of a claim, as it is sufficient if the party prevails on the significant issues in the appeal. See FloridaPower and Light v. Polackwich, 705 So.2d 23 (Fla. 2d DCA 1997); Fleitmanv. McPherson, 704 So.2d 587 (Fla. 1st DCA 1997); see also Stringer v.Katzell, 695 So.2d 369 (Fla. 4th DCA), rev. denied, 698 So.2d 1225 (Fla. 1997). Because the appellant did prevail on the significant issue in his appeal, the trial court should have granted the rule 9.400(a) motion and awarded costs under the rule. The challenged order is therefore reversed, and the case is remanded.

VAN NORTWICK and BROWNING, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.