(a) Right to costs.
(1) Except as provided in this rule, the prevailing party in a civil appeal is entitled to costs on appeal.
(2) The prevailing party is the respondent if the appellate division affirms the judgment without modification or dismisses the appeal. The prevailing party is the appellant if the appellate division reverses the judgment in its entirety.
(3) If the appellate division reverses the judgment in part or modifies it, or if there is more than one notice of appeal, the appellate division must specify the award or denial of costs in its decision.
(4) In the interests of justice, the appellate division may also award or deny costs as it deems proper.
(b) Judgment for costs.
(1) The appellate division clerk must enter on the record and insert in the remittitur judgment awarding costs to the prevailing party under (a).
(2) If the clerk fails to enter judgment for costs, the appellate division may recall the remittitur for correction on its own motion or on a party's motion made not later than 30 days after the remittitur issues.
(c) Procedure for claiming or opposing costs.
(1) Within 30 days after the clerk sends notice of issuance of the remittitur, a party claiming costs awarded by the appellate division must serve and file in the trial court a verified memorandum of costs under rule 3.1700(a)(1).
(2) A party may serve and file a motion in the trial court to strike or tax costs claimed under (1) in the manner required by rule 3.1700.
(3) An award of costs is enforceable as a money judgment.
(Subd (c) amended effective January 1, 2011.)
(d) Recoverable costs.
(1) A party may recover only the costs of the following, if reasonable:
(A) Filing fees;
(B) The amount the party paid for any portion of the record, whether an original or a copy or both, subject to reduction by the appellate division under subdivision (e);
(C) The cost to produce additional evidence on appeal;
(D) The costs to notarize, serve, mail, and file the record, briefs, and other papers;
(E) The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply;
(F) The cost to procure a surety bond, including the premium, the cost to obtain a letter of credit as collateral, and the fees and net interest expenses incurred to borrow funds to provide security for the bond or to obtain a letter of credit, unless the trial court determines the bond was unnecessary; and
(G) The fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking, unless the trial court determines the deposit was unnecessary.
(2) Unless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702.
(Subd (d) amended effective January 1, 2013.)
(1) On motion of a party or its own motion, the appellate division may impose sanctions, including the award or denial of costs, on a party or an attorney for:
(A) Taking a frivolous appeal or appealing solely to cause delay; or
(B) Committing any unreasonable violation of these rules.
(2) A party's motion under (1) must include a declaration supporting the amount of any monetary sanction sought and must be served and filed before any order dismissing the appeal but no later than 10 days after the appellant's reply brief is due. If a party files a motion for sanctions with a motion to dismiss the appeal and the motion to dismiss is not granted, the party may file a new motion for sanctions within 10 days after the appellant's reply brief is due.
(3) The court must give notice in writing if it is considering imposing sanctions. Within 10 days after the court sends such notice, a party or attorney may serve and file an opposition, but failure to do so will not be deemed consent. An opposition may not be filed unless the court sends such notice.
(4) Unless otherwise ordered, oral argument on the issue of sanctions must be combined with oral argument on the merits of the appeal.
Rule 8.891 amended effective January 1, 2013; adopted effective January 1, 2009; previously amended effective January 1, 2011.
Advisory Committee Comment
Subdivision (d).."Net interest expenses" in subdivisions (d)(1)(F) and (G) means the interest expenses incurred to borrow the funds that are deposited minus any interest earned by the borrower on those funds while they are on deposit.
Subdivision (d)(1)(D), allowing recovery of the "costs to notarize, serve, mail, and file the record, briefs, and other papers," is intended to include fees charged by electronic filing service providers for electronic filing and service of documents.