JORGE E. MUNIZ, APPELLANT,
v.
MARIE E. SAMERO, APPELLEE
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A Florida appellate court reversed a trial court's discretionary denial of costs and attorney fees after a plaintiff voluntarily dismissed her replevin and promissory note action, holding that costs must be assessed in the dismissed action as a matter of rule and attorney fees should be determined based on whether there was a complete absence of a justiciable issue.
The court held that costs must be mandatorily assessed in the dismissed action against the defendant and judgment for costs must be entered, as Muniz is the prevailing party in that action. The trial court should determine the attorney fee issue based on a finding of a complete absence of a justiciable issue of law or fact under section 57.105, not on equitable discretion.
[1] A trial court must assess costs against a plaintiff who takes a voluntary nonsuit in the dismissed action.
[2] A defendant is considered the prevailing party in a voluntarily dismissed action for the purpose of assessing costs.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We agree with the appellant's reading of Rule 1.420(d). The language of the rule mandates assessment of costs in the instant (i.e., the dismissed) action.”
Establishes that Rule 1.420(d) requires mandatory assessment of costs, not discretionary denial
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMarie Samero filed suit against Jorge Muniz for replevin and payment under a promissory note. The trial court scheduled the case for trial on January …
The full statement of facts, procedural history, and disposition for this case are member content.
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COBB, Judge.
The plaintiff below, Marie Samero, filed an action against Jorge Muniz for replevin and payment under a promissory note. The trial court set the action for trial via written order for January 18, 1988. See Fla.R.Civ.P. 1.440(c). Apparently, the trial court attempted to reschedule the trial date for April 6, 1988 by telephone notice to the offices of the respective attorneys, but no written notice of this new trial date was ever entered or served as required by Florida Rule of Civil Procedure 1.080(h)(1).
Based on a subsequent factual determination by the trial court, it appears that counsel for the plaintiff, through no fault of his own, did not learn of the new trial date until he was telephoned at the time the trial was set to begin. As a result of this last minute notice, counsel for plaintiff “bailed out” by taking a voluntary nonsuit pursuant to Florida Rule of Civil Procedure 1.420(a). The record does not indicate that he sought a continuance based upon lack of trial notice.
The defendant Muniz then moved to tax costs pursuant to Florida Rule of Civil Procedure 1.420(d)1 and attorney fees pursuant to section 57.105, Florida Statutes (1987).2 The trial court found that it would be “extremely inequitable” to award fees or costs against plaintiff “at this time” and denied them "without prejudice to (Muniz) reapplying for costs and attorney fees sixty (60) days hereafter in the event plaintiff does not refile herein, or at the conclusion of these proceedings if they are refiled.” This order denying fees and costs is the subject of this appeal by Muniz.
We agree with the appellant’s reading of Rule 1.420(d). The language of the rule mandates assessment of costs in the instant (i.e., the dismissed) action. At this point, Muniz is the “prevailing party” in regard to the dismissed action. See Vidibor v. Adams, 509 So. 2d 973 (Fla. 5th DCA 1987). In the event the action is refiled and the plaintiff ultimately prevails, there is authority for the proposition that she may then recoup from Muniz the costs she paid to him as the price of her voluntary dismissal. McArthur Dairy, Inc. v. Guillen, 470 So. 2d 747 (Fla. 3d DCA 1985). The trial court should also resolve the attorney fee issue at the same time based upon a determination as to the complete absence of a justiciable issue of law or fact under section 57.105. See MacBain v. Bowling, 374 So. 2d 75 (Fla.3d DCA 1979).
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
SHARP, C.J., and ORFINGER, J., concur. . Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this State commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order. . Attorney's fee. — The court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney in any civil action in which the court finds there there was a complete absence of a justiciable issue of either law of fact raised by the complaint or defense of the losing party; provided, however, that the losing party’s attorney is not personally responsible if he has acted in good faith, based on the representations of his client.
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Rose Printing Co., Inc. v. Wilson, 602 So. 2d 600 (Fla. 1st DCA 1992)…or the cost of taking a witness deposition, a cost which need not be incurred again in preparation for the second action, the prevailing plaintiff should recover this cost which he has been forced to pay to the defendant. See also, Muniz v. Samero, 534 So. 2d 848, 849 (Fla. 5th DCA 1988). Accordingly, we grant the petition for writ of certiorari and quash the trial judge’s order denying Rose’s motion to tax costs. Upon reconsideration of Rose’s motion, the trial judge should apply the analysis announced by…
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Shepheard v. Deutsche Bank Tr. Co. Americas, 38 So. 3d 825 (Fla. 5th DCA 2010)…the “prevailing party.” Vidibor v. Adams, 509 So. 2d 973, 974 (Fla. 5th DCA 1987). If, however, Appellee ultimately prevails in the refiled action, then it may recoup from Appellant the costs it paid for its voluntary dismissal. See Muniz v. Samero, 534 So. 2d 848, 849 (Fla. 5th DCA 1988). Accordingly, we reverse the trial court’s order denying Appellant attorney’s fees and remand for the trial court to assess a reasonable attorney’s fee for the trial court proceeding and the earlier appeal. REVERSED and RE…
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Denetry Lampkin v. Bridgnanan (9th Cir. Ct. App. Div. 2010)…as here, a statute makes attorney’s fees part of recoverable costs, the court has no discretion and is mandated to award them under rule 1.420(d), Florida Rules of Civil Procedure, to the prevailing party in a dismissed action. See Muniz v. Samero, 534 So. 2d 848, 849 n.2 (Fla. 5th DCA 1988). Accordingly, this Court concludes that the trial court erred in denying Lampkin’s motion for attorney’s fees and costs in the case below. Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the order appeal…
Authorities Cited
- Kessler v. Medow, 374 So. 2d 75 (Fla. 3d DCA 1979)
- Vidibor v. Adams, 509 So. 2d 973 (Fla. 5th DCA 1987)
- McARTHUR Dairy, Inc. v. Guillen, 470 So. 2d 747 (Fla. 3d DCA 1985)