TODD LONG, A MINOR, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, LONA T. LONG, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF GEORGE E. LONG, DECEASED, APPELLANTS,
v.
MRS. BARBARA M. MARTIN, AS GUARDIAN OF REID MARTIN, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FLOYD H. MARTIN, DECEASED, AND CESSNA AIRCRAFT COMPANY, A FOREIGN CORPORATION, ET AL., APPELLEES
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This case addresses whether a plaintiff dismissed from a multi-party lawsuit may be assessed costs, and whether travel expenses for counsel attending depositions are taxable costs. The court reversed a cost judgment against the minor plaintiff, finding that while costs may be assessed against a dismissed plaintiff even when the action continues, travel expenses for counsel are not properly taxable costs.
Costs may be assessed against a dismissed plaintiff even when the action continues on behalf of other plaintiffs, as Florida Rule 1.420(d) makes no distinction between dismissals by a single plaintiff versus one of several plaintiffs. However, travel expenses for counsel attending depositions are not properly taxable costs; only the deposition expenses of $146.99 would be ordinarily proper assessable costs.
[1] Costs may be assessed against a plaintiff who voluntarily dismisses their action, even if other plaintiffs remain in the case.
[2] Travel expenses for attorneys to attend depositions or court hearings are generally not taxable costs.
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Join FLexlaw to unlock all legal intelligence“costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.”
Florida Rule of Civil Procedure 1.420(d) provides the basis for assessing costs against a dismissed plaintiff
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Join FLexlaw to unlock all legal intelligenceA Cessna aircraft crashed, injuring minor plaintiff Todd Long and killing his father George Long. The mother, Lona Long, sued on behalf of herself and…
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ORFINGER, Judge.
This appeal questions a cost judgment entered against appellant. We reverse.
As a result of the crash of a Cessna aircraft, the minor appellant, Todd Long, was injured and his father, George Long, was killed. Suit was instituted by Lona Long, individually, and as mother and next friend of the minor plaintiff and as personal representative of the estate of her deceased husband. During the course of the proceedings, a notice of voluntary dismissal, pursuant to Florida Rule of Civil Procedure 1.420(a), was filed on behalf of Todd Long. The action continued on behalf of the other plaintiffs.
Following the dismissal, Cessna moved to assess costs against the dismissed plaintiff. The motion listed various deposition expenses totalling $146.99, and then a series of travel expenses for attending various depositions and court hearings, totalling $2,045.34.
A cost judgment was entered in favor of Cessna for $1,285.76 and Todd Long appeals, raising two issues: (1) that the cost award was premature because the action still continues; and (2) that the court erred in awarding travel expenses for attending depositions or hearings.
Florida Rule of Civil Procedure 1.420(d) provides that
“costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.”
The rule makes no distinction between dismissals by a single plaintiff and by one of several plaintiffs and we see no reason to create such a distinction. The interpretation sought by appellant would give an advantage to one of several plaintiffs not available to a single plaintiff, and not warranted by the rule in question.
We do find merit, however, in appellant’s second point. The case is here on a stipulated record which does not include a transcript of the cost hearing, which apparently was not recorded. Neither does the order awarding costs itemize the costs awarded, which makes appellate review more difficult. Thus, we would be constrained to affirm the order were it not clear that it necessarily includes costs not properly taxable.
Of the costs requested by appellee in its motion, only $146.99 represents the cost of depositions, which are ordinarily proper assessable costs. The remainder of the motion itemizes travel costs of the attorneys to attend depositions and court hearings. The award of $1,285.76 thus unmistakably includes at least some travel costs.
In general, air fare or other personal or travel expenses of counsel to attend depositions are not taxable costs. Sunshine Kitchens, Inc. v. Mallin, 388 So. 2d 1260 (Fla.3d DCA 1980), review denied, 399 So. 2d 1146 (Fla.1981); Professional Computer Management, Inc. v. Tampa Wholesale Liquor Co., 374 So. 2d 626 (Fla.2d DCA 1979); Aetna Life Ins. Co. v. Sievert, 361 So. 2d 747 (Fla. 1st DCA 1978). Counsel’s travel expenses in general are not taxable. Butler v. Borowsky, 120 So. 2d 656 (Fla.3d DCA 1960). Appellee points to White v. Cowles Florida Broadcasting, 361 So. 2d 821 (Fla. 1st DCA 1978), as a holding that travel expenses are properly taxable, but this case dealt with Rule 1.442, the “offer of judgment” rule, not 1.420(d), and is thus distinguishable. In White, defendants had twice made offer of judgment, and the verdict ultimately recovered was less than both offers. Further, the deposition in question was initiated by plaintiff, after the offers had been made and rejected. No such situation confronts us here.
The cost judgment is reversed and the cause is remanded for further proceedings consistent herewith.
REVERSED and REMANDED.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.
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Romar Int'l, Inc. v. JIM Rathman Chevrolet/Cadillac, Inc., 420 So. 2d 346 (Fla. 5th DCA 1982)…to recover attorney’s fees and expenses, including those incurred in travelling to the deposition site. Rule 1.420(d) generally does not permit recovery of attorney’s fees,3 see Randle, 360 So. 2d at 69, or counsel’s travel expenses. Long v. Martin, 410 So. 2d 607 (Fla. 5th DCA 1982). We have been unable to discover any cases under Rule 1.310 which establish that the trial court has inherent jurisdiction after a voluntary dismissal to award the expenses provided for by the Rule. Under Randle and Knight, we r…
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Barnes v. City OF Dunedin & Pinellas Cnty., 666 So. 2d 574 (Fla. 2d DCA 1996)…Taxation of Costs do not allow for the taxation of costs for travel expenses incurred by attorneys. Mitchell v. Osceola Farms Co., 574 So. 2d 1162 (Fla. 4th DCA 1991); C.B.T. Realty v. St. Andrews, 508 So. 2d 409 (Fla. 2d DCA 1987); Long v. Martin, 410 So. 2d 607 (Fla. 5th DCA 1982). Although there is no absolute bar to taxation of travel expenses, Madison v. Midland National Life Ins., 648 So. 2d 1226 (Fla. 4th DCA 1995), the city and county’s mere assertion that it would have cost more to bring the doctor…
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Black Diamond Props., Inc. v. Haines, 36 So. 3d 819 (Fla. 5th DCA 2010)…fees under section 817.41(6) only. Bristol contends that Black Diamond cannot be deemed a prevailing party for attorney’s fees or costs because the underlying litigation has not yet been concluded. Our court has held otherwise. In Long v. Martin, 410 So. 2d 607 (Fla. 5th DCA 1982), several plaintiffs brought an action arising out of an airplane crash. One of the plaintiffs voluntarily dismissed their action pursuant to rule 1.420(a) of the Florida Rules of Civil Procedure. The trial court awarded the defen…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- AETNA Life Ins. Co. v. Sievert, 361 So. 2d 747 (Fla. 1st DCA 1978)
- Butler v. Borowsky, 120 So. 2d 656 (Fla. 3d DCA 1960)
- Prof'l Computer Mgmt., Inc. v. Tampa Wholesale Liquor Co., Inc., 374 So. 2d 626 (Fla. 2d DCA 1979)
- Sunshine Kitchens, Inc. v. Mallin, 388 So. 2d 1260 (Fla. 3d DCA 1980)
- White v. Cowles Fla. Broad., Inc., 361 So. 2d 821 (Fla. 1st DCA 1978)