Opinion
No. 39341.
April 15, 1970.
Petition for review from the District Court of Appeal, Third District, Richard H.M. Swann, J.
Bolles, Goodwin, Ryskamp Ware, and Robert B. Alexander, Jr., Miami, for petitioner.
Sibley, Giblin, Levenson Ward and Irving B. Levenson, Miami Beach, for respondent.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 229 So.2d 598. That decision affirmed the award of costs against the Board of Public Instruction holding the Board liable for reasonable compensation to be paid to a court appointed examiner for his work in examining the records of the School Board. Conflict is alleged with the decision of this Court in Palethorpe v. Thomson, 171 So.2d 526 (Fla. 1965), a case holding that the State or its agencies may not be held liable for costs unless expressly provided for by statute.
The District Court in affirming the costs award held that the order of the lower court entered January 30, 1968, was a final adjudication that the Board was liable for reasonable compensation to be paid to the examiner and the subsequent order of December 10, 1968, simply adjudicated the reasonable amount of that liability. The Court went on to state that the Board's failure to attack the order of January 30, 1968, holding it liable for costs, barred the Board's right to challenge this point on appeal. We find it unnecessary to pass on the correctness of the District Court's decision on this point since the decision of this Court in Simpson v. Merrill, 234 So.2d 350, retreats from the Palethorpe decision and holds that under Florida Statutes § 57.041, F.S.A., the State or its agencies may be held liable for costs.
Accordingly, the decision of the District Court is affirmed.
It is so ordered.
ROBERTS, DREW, CARLTON and BOYD, JJ., concur.
ERVIN, C.J., concurs specially with opinion.
I concur specially in the foregoing opinion as per my special opinion in Simpson v. Merrill, 234 So.2d 350.