STEVEN BIS AND EUGENIA BIS, APPELLANTS,
v.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE BY RESIDENTIAL FUNDING COMPANY, LLC, F/K/A RESIDENTIAL FUNDING CORPORATION ATTORNEY IN FACT, APPELLEE
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The Fourth District Court of Appeal affirmed the trial court's denial of attorneys' fees to homeowners in a foreclosed action, but reversed the denial of costs. The court held that under Florida Rule of Civil Procedure 1.420(d), costs must be assessed when an action is voluntarily dismissed, absent an agreement to the contrary.
The court held that homeowners are not entitled to attorneys' fees but are entitled to costs. Rule 1.420(d) mandates that costs be assessed in an action dismissed under that rule unless the parties agree otherwise, but the rule does not contemplate an award of attorneys' fees.
[1] A voluntary dismissal of an action pursuant to Florida Rule of Civil Procedure 1.420(d) mandates the assessment of costs against the dismissing party.
[2] In the absence of a transcript of a hearing on attorneys' fees and costs, an appellate court may reverse the denial of fees only if error appears on the face of the order…
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Join FLexlaw to unlock all legal intelligence“Rule 1.420(d) is unambiguous— costs are to be assessed in the action that is the subject of the voluntary dismissal.”
Establishes the mandatory nature of cost assessment under the rule
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Bank filed a foreclosure action against Steven and Eugenia Bis that proceeded for several years. On the day trial was scheduled, the Bank filed a …
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Steven and Eugenia Bis, defendants below (“the Homeowners”), appeal the denial of their motion for attorneys’ fees and costs following the voluntary dismissal of the foreclosure action by U.S. Bank National Association (“the Bank”). We affirm the trial court’s denial of attorneys’ fees, but we find error with respect to the denial of costs.
The Bank’s foreclosure action against the Homeowners proceeded for several years until the Bank filed a notice of voluntary dismissal on the day that trial was scheduled to take place. Thereafter, the Homeowners moved for attorneys’ fees and costs. After a hearing on entitlement only, the trial court denied their motion in total.
The record on appeal does not include a transcript of the hearing on the Homeowners’ motion for attorneys’ fees and costs. As such, absent a transcript of the hearing, this court may reverse only where error appears on the face of the order being appealed. Wolfe v. Nazaire, 758 So.2d 730, 733 (Fla. 4th DCA 2000). The Bank challenged the adequacy of Homeowners’ pleadings with regard to attorney’s fees and there is no error apparent on the face of that portion of the order denying attorney’s fees.
On the other hand, with regard to costs, the Bank voluntarily dismissed its action pursuant to Florida Rule of Civil Procedure 1.420, which provides in pertinent part, “Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs.” Fla. R. Civ. P. 1.420(d). “Rule 1.420(d) is unambiguous— costs are to be assessed in the action that is the subject of the voluntary dismissal.”1 Wilson v. Rose Printing Co., 624 So.2d 257, 258 (Fla.1993).
Although a transcript of the fees and costs hearing is absent from the record, the underlying motion, which is part of the record, makes it clear that the Homeowners’ properly sought costs below. Because the Bank voluntarily dismissed the action and there was no agreement to the contrary, the Homeowners are entitled to costs and the trial court erred in denying them. Under these facts, however, rule 1.420 does not contemplate an award of attorneys’ fees.
*973Consequently, we reverse and remand for a hearing on the amount of costs to be awarded in favor of the Homeowners.
Affirmed in part, reversed in part, and remanded with instructions.
STEVENSON and GROSS, JJ., concur.
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Citator
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Lennox Nat'l Account Servs., LLC v. Claire (Fla. 4th DCA 2021)…is concluded as to the party seeking taxation of costs.” (emphasis added). We have held that “[r]ule 1.420(d) is unambiguous—costs are to be assessed in the action that is the subject of the voluntary dismissal.” Bis v. U.S. Bank Nat’l Ass’n, 172 So. 3d 971, 972 (Fla. 4th DCA 2015) (quoting Wilson v. Rose Printing Co., 624 So. 2d 257, 258 (Fla. 1993)); see also Fleet Servs. Corp. v. Reise, 857 So. 2d 273, 275 (Fla. 2d DCA 2003) (“When [the plaintiff] filed its voluntary dismissal, [the defendant] be…
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Kyte v. Discover Bank (Fla. 2d DCA 2023)…ction dismissed under that rule. The Fourth District has held that when a plaintiff voluntarily dismisses an action pursuant to rule 1.420 and there is no agreement to the contrary, the defendant is entitled to costs. Bis v. U.S. Bank Nat'l Ass'n, 172 So. 3d 971, 972 (Fla. 4th DCA 2015). But the court also noted that "rule 1.420 does not contemplate an award of attorneys' fees." Id. Nonetheless, a party may be entitled to attorney's fees under rule 1.420 if the parties' contract defines costs to include a…
Authorities Cited
- Wilson v. Rose Printing Co., Inc., 624 So. 2d 257 (Fla. 1993)
- Trishia Wolfe v. Nazaire, 758 So. 2d 730 (Fla. 4th DCA 2000)