LINDA J. BAUER AND RUSSELL C. BAUER, APPELLANTS,
v.
PHILIP R. HARDY, M.D. AND PHILIP R. HARDY, M.D., P.A., APPELLEE
Explore caselaw by topic → Browse Misnomer cases and more on FLexlaw
PER CURIAM.
Pursuant to Florida Rule of Appellate Procedure 9.400(c), appellants have filed a timely motion for review of an order denying their motion to tax costs, filed with the trial court following this court’s decision reversing a contempt order.
The trial court denied the motion to tax costs, apparently on the theory that the motion was directed to an incorrect party, i.e., the law firm of Tygart & Schuler, and that an amended motion, naming Tygart individually, was filed more than 30 days after issuance of this court’s mandate. See Fla.R.App.P. 9.400(a).
No other basis for the denial has been asserted. We quash the order denying costs and direct the trial court to tax costs in favor of appellant, the amount to be determined by the trial court in accordance with rule 9.400(a).1 The situation presented is analogous to that in which, under certain circumstances, an amendment to pleadings to correct a misnomer relates back to the date the original pleading was filed. See, e.g., Schachner v. Sandler, 616 So. 2d 166 (Fla. 4th DCA 1993); Johnson v. Taylor Rental Center, Inc., 458 So. 2d 845 (Fla. 2d DCA 1984).
Tygart has not been prejudiced in any way by the misnomer in the original motion to tax costs, and, in fact, may have precipitated the misnomer by demanding a check be made for payment of his fee to the firm of Tygart & Schuler and by signing the motion for contempt in the name of the law firm.
ERVIN, JOANOS and WOLF, JJ., concur. . We treat any outstanding motions for reconsideration as having been abandoned, by analogy to Fla.R.App.P. 9.020(g)(3).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Ryan v. Countrywide Home Loans, Inc., 743 So. 2d 36 (Fla. 2d DCA 1999)…identical party so that one may act for the other in a legal proceeding. The trial judge erred in holding that Countrywide’s motion could relate back to Hunter’s motion. We find distinguishable Countrywide’s supplemental authority, Bauer v. Hardy, 667 So. 2d 251 (Fla. 1st DCA 1995), filed after oral argument in this case. In Bauer, the successful appellant, on remand, had filed an untimely motion to tax appellate fees against an individual attorney; the First District allowed this untimely motion to relate…
Authorities Cited
- Johnson v. Taylor Rental Ctr., Inc., 458 So. 2d 845 (Fla. 2d DCA 1984)
- Schachner v. Sandler, 616 So. 2d 166 (Fla. 4th DCA 1993)