Weeks v. Klimas

566 So.2d 344 (1990) John R. WEEKS and Steven Weeks, Appellants, v. Richard KLIMAS and Shari Klimas, Appellees. No. 89-03138. District Court of Appeal of Florida, Second District. August 31, 1990. Daniel P. Mitchell of Mitchell and Carter, P.A., Tampa, for appellants. Roland A. Rosello of Ferlita, Nutter & Rosello, P.A., Tampa, for appellees. CAMPBELL, Acting Chief Judge. This appeal concerns a dispute as to which party should pay the costs incurred in a personal injury action growing out of an automobile accident. The final judgment provided that appellees, Richard Klimas and Shari Klimas, plaintiffs below, would recover nothing as a result of the failure of appellee Richard Klimas to establish that he had sustained a permanent injury within a reasonable degree of medical probability. That judgment was per curiam affirmed by this court in a separate appeal. The final judgment provided in toto as follows: Pursuant to the Verdict the jury rendered September 14, 1988, it is ORDERED and ADJUDGED that the Plaintiffs, Richard Klimas and SHARI KLIMAS, his wife, recover zero from the Defendants, JOHN R. WEEKS and STEVEN WEEKS. It is further ORDERED and ADJUDGED that this Court shall retain jurisdiction to determine taxable costs. DONE and ORDERED in Chambers at Tampa, Hillsborough County, Florida. *345 We conclude that under the terms of that judgment, appellants were entitled to a judgment for their taxable costs pursuant to section 57.041(1), Florida Statutes (1987), because they were the parties recovering judgment. The trial court in the order on appeal denied appellants their costs on the authority of this court's decision in Aspen v. Bayless, 552 So.2d 298 (Fla. 2d DCA 1989). Our supreme court has since reversed that decision in Aspen v. Bayless, 564 So.2d 1081 (Fla. 1990). We, therefore, reverse the costs judgment which is the subject of this appeal and direct an entry of judgment for appellants for this taxable cost. Reversed and remanded with directions. FRANK and PATTERSON, JJ., concur.