ROGER CAMPBELL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LANA CAMPBELL, DECEASED, APPELLANT,
v.
BARBARA F. NAPOLI AND EDWARD I. CASE PLUMBING CO., APPELLEES
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The court held that a costs judgment entered after the plaintiff's death and without substitution of a successor party is erroneous.
The plaintiff died during litigation, and her counsel failed to substitute a successor party as required by rule. The trial court dismissed the action…
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PATTERSON, Chief Judge.
This is an appeal from a costs judgment entered in a case dismissed pursuant to Florida Rule of Civil Procedure 1.260(a)(1). The plaintiff, Lana Campbell, died, and her counsel was unable to substitute a successor party as required by rule 1.260(a)(1). The trial court dismissed the action without prejudice and retained jurisdiction to assess costs. The proceeding to tax costs and the judgment for costs both occurred after Lana Campbell’s death and without the substitution of a successor party.
Lana Campbell, as the plaintiff, was an indispensable party to the action. “Upon the death of an indispensable party, the action abates until the deceased party’s estate, or other appropriate legal representative, has been substituted pursuant to rule 1.260(a)(1).” Cope v. Waugh, 627 So. 2d 136, 136 (Fla. 1st DCA 1993) (citing Floyd v. Wallace, 339 So. 2d 653 (Fla.1976)). There being no party against whom a judgment could be entered, the trial court erred in entering the judgment for costs. Accordingly, we reverse the costs judgment.1
Reversed.
DAVIS, J., and CAMPBELL, MONTEREY, (Senior) Judge, Concur. . This is not a factual situation which can support a nunc pro tunc postmortem judgment. See generally Becker v. King, 307 So. 2d 855 (Fla. 4th DCA 1975).
We do not reach the issue of whether costs can be assessed in a dismissal pursuant to Florida Rule of Civil Procedure 1.260(a)(1), which does not provide for an assessment of costs.
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Schaeffler v. Yuliya Deych and Boris Bezrodnyy, 38 So. 3d 796 (Fla. 4th DCA 2010)…nt cause of action abated upon the death of [plaintiff], an indispensible party, and the trial court erred in adjudicating the rights of the [*801] parties without having all of them actually or constructively before it.” Id. In Campbell v. Napoli, 786 So. 2d 1232, 1232 (Fla. 2d DCA 2001), where the trial court dismissed the action after the plaintiff died and entered a judgment for costs, the second district reversed the judgment, holding there was “no party against whom a judgment could be entered, [and] th…
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King Tyson, Inc. v. Perez (Fla. 3d DCA 2024)…dants. On appeal, Defendants argue it was error for the trial court to enter judgment against the deceased defendant, Isaiah King. We agree and therefore reverse the final judgment to the extent it includes Isaiah King. See Campbell v. Napoli, 786 So. 2d 1232, 1232 (Fla. 2d DCA 2001) (holding “[t]here being no party against whom a judgment could be entered, the trial court erred in entering the judgment”). We affirm the final judgment in all other respects. See Ham v. Dunmire, 891 So. 2d 492, 495 (F…
Authorities Cited
- Becker v. King, 307 So. 2d 855 (Fla. 4th DCA 1975)
- Cope v. Waugh, 627 So. 2d 136 (Fla. 1st DCA 1993)
- Miller v. Earle Bennett, 339 So. 2d 653 (Fla. 1976)