EFFRAIM MILCE AND VALCINA MILCE, APPELLANTS,
v.
WELLS FARGO BANK, N.A., APPELLEE
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The Fourth District Court of Appeal affirmed a foreclosure judgment against homeowners who sought to stay the second foreclosure action based on unpaid costs from a voluntarily dismissed first action. The court held that a mandatory stay under Florida Rule of Civil Procedure 1.420(d) requires a prior order liquidating the amount of costs owed; absent such an order, the defendant is not entitled to a stay.
The court held that even though the bank voluntarily dismissed the first foreclosure action, the homeowners were not entitled to a mandatory stay of the second action because there was no order liquidating the amount of costs to which they were entitled. A mandatory stay under Rule 1.420(d) requires entry of an order or judgment specifying a definite amount of costs before a defendant can demand a stay.
[1] A trial court shall stay proceedings in a second action based on the same claim until the party seeking affirmative relief has complied with an order for payment of costs…
[2] A defendant is not entitled to a stay of a second action pursuant to Rule 1.420(d) absent an order liquidating the amount of costs owed from a prior dismissed action.
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“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 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.”
Statement of Rule 1.420(d) governing mandatory stay in second actions after voluntary dismissal
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Join FLexlaw to unlock all legal intelligenceWells Fargo filed a foreclosure action against the Milces in 2009 and voluntarily dismissed it in 2013. The homeowners moved to tax attorney's fees an…
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We affirm the final judgment of foreclosure and write to address one issue— whether the trial court erred by proceeding to trial instead of staying the action pursuant to Florida Rule of Civil Procedure 1.420(d). We hold that even though the bank had voluntarily dismissed the first foreclosure action, the homeowner was not entitled to a stay of the second action because there was no order liquidating the amount of costs to which the homeowners were entitled.
The bank filed a foreclosure action against the homeowners in 2009. In 2013, the bank voluntarily dismissed the action. In June 2013, the homeowners moved to tax attorney’s fees and costs. An order entitling the homeowners to attorney’s fees and costs was entered on June 11, 2014; the court scheduled a hearing to liquidate the amount on November 14, 2014.
Meanwhile, the bank filed its second foreclosure complaint against the homeowners in April 2014. The case went to trial on September 24, 2014. At the outset, the homeowners argued that, because of the outstanding issue of fees and costs arising from the voluntary dismissal of the first action, the trial in this case had to be stayed until costs were assessed and paid. The bank pointed out that the homeowners had moved for fees and costs immediately after dismissal in June 2013, but had not been in a hurry to liquidate the amount. The following exchange occurred:
Court: What took so long?
Homeowner: Unfortunately, the rule has no time limitation. It doesn’t say there was any time that this has to be brought in this action. If these amounts aren’t paid yet, it’s mandatory in this current course to stay this action until those amounts are determined and actually paid.
The court denied the motion to stay and the case proceeded to trial.
Where a plaintiff has taken a voluntary dismissal, costs “shall be assessed and judgment for costs entered in that action.” Fla. R. Civ. P. 1.420(d). The rule provides:
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 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.
Id.
Rule 1.420(d) “specifically provides that the court shall stay the proceedings in the second action ‘until the party seeking affirmative relief has complied with the order’ for the payment of costs. Patently, abatement is mandatory until the cost judgment is satisfied.” Estate of McGrail v. Rosas, 691 So.2d 50, 51 (Fla. 4th DCA 1997). “Once costs are assessed, the plaintiff cannot proceed on the new complaint on the same issues until the *1258costs assessed are actually paid.” Albertson’s Inc. v. Neil, 784 So.2d 584, 585 (Fla. 4th DCA 2001).
We read the rule as requiring the entry of an order or judgment for payment of a specific amount of costs before a defendant can be entitled to a stay. Under rule 1.420(d), it is the noncompliance with “the order” that triggers a defendant’s "entitlement to a stay of the second action. Here there was no order liquidating costs. Without such an order, a plaintiff cannot “comply” within the meaning of the rule'by making payment. The homeowners were entitled to have costs assessed immediately after the entry of the voluntary dismissal. See Caufield v. Cantele, 837 So.2d 371, 376 (Fla.2002) (“[R]ule 1.420(d) provides that costs are to be assessed immediately after a dismissal is entered”); Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234, 1235 (Fla. 4th DCA 1976) (“[T]he appellant should have, been awarded costs and attorney’s fees immediately following dismissal of the first action.”); McKelvey v. Kismet, Inc., 430 So.2d 919, 921 (Fla. 3d DCA 1983) (finding “costs are to be assessed immediately after a dismissal is entered”). Nothing in.this record suggests that the homeowners diligently sought a hearing to assess costs.
Affirmed.
GERBER and KLINGENSMITH, JJ., concur.
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Citator
Cited By
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Baute v. Crenshaw, 48 Fla. L. Weekly D927 (Fla. 6th DCA 2023)…e noncompliance with “the order” that triggers a defendant’s entitlement to a stay of the second action. Here there was no order liquidating costs. Without such an order, a plaintiff cannot “comply” within the meaning of the rule by making payment. 183 So. 3d 1256, 1258 (Fla. 4th DCA 2016). In this case, the trial court has not entered an order or judgment for payment of a specific amount of costs in the Prior Lawsuit. The plain language of Rule 1.420(d) mandates that such an order must be entered, and not c…
Authorities Cited
- Caufield v. Gino Cantele, 837 So. 2d 371 (Fla. 2002)
- State v. Sagre, 430 So. 2d 919 (Fla. 3d DCA 1983)
- Gordon v. Warren Heating & AIR Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976)
- Press v. Press, 340 So. 2d 1234 (Fla. 4th DCA 1976)
- The Est. OF Nellie McGRAIL v. Rosas, 691 So. 2d 50 (Fla. 4th DCA 1997)
- Albertson's, Inc. v. Neil, 784 So. 2d 584 (Fla. 4th DCA 2001)