CITY OF HALLANDALE, A MUNICIPAL CORPORATION OF FLORIDA, APPELLANT,
v.
WILLIAM F. CHATLOS, ACMAR ENGINEERING CORP., A FLORIDA CORPORATION, M. L. WATSON, A. J. DODGE, G. B. DODGE, JR., P. L. WATSON AND RUBY M. WATSON, HIS WIFE, APPELLEES
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The dissenting judge argued that the wife failed to prove special equities or grounds for a constructive trust to justify an award of the husband's corporate stock.
The dissenting judge would have affirmed the final decree, finding no basis in fact or law to award the husband's corporate stock to the wife.
The wife joined in a deed conveying land to a family corporation, for which the husband received corporate stock. The dissenting judge noted the histo…
The full statement of facts, procedural history, and disposition for this case are member content.
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ON MOTION TO DISMISS
The appellant, City of Hallandale, a municipal corporation of the State of Florida, has taken two appeals from a cost judgment entered against it after it took a voluntary dismissal in a condemnation proceeding, one being an interlocutory appeal and the other a plenary appeal.
The appellees, 'William F. Chatios and others, have moved to dismiss both appeals on the ground that said appeals are to review a cost judgment which is reviewable only by petition under F.A.R. 3.16(c), 32 F.S.A.1
*54The question for our determination is whether the appeals under consideration were providently perfected. The method or means of securing review of cost determinations has been fraught with confusion in this state. There are decisions to the effect that a cost judgment is reviewable only by petition under F.A.R. 3.16(c). See Giovannielli v. Lacedonia, Fla.App.1965, 179 So.2d 407; Dames v. Dames, Fla.App. 1963, 156 So.2d 532; Horner v. State of Florida, Fla.App. 1963, 148 So.2d 553. The foregoing decisions were rendered by our sister court of the Third District. In Craft v. Clarembeaux, Fla.App.1964, 162 So.2d 325, our sister court of the Second District has taken a different view and a view which we believe to be the proper view and to which we adhere. The court in Craft states:
“There are then at least three distinct means of securing review of cost determination. If the cost determination is entered in the final judgment or is made subsequent to rendition of the final judgment but prior to timely appeal from that judgment, plenary appeal from the final judgment and a proper assignment or, if appropriate, cross-assignment of error will bring the cost ordered to the appellate court. See Rules 3.2(d), 3.3 and 3.5, F.A.R. If the cost determination is made after entry of a final judgment and the judgment has been appealed, the time for appealing the final judgment has expired or the aggrieved party does not desire to appeal the final judgment, interlocutory appeal from the cost judgment will bring that matter to the appellate court. Rule 4.2, F.A.R. If the cost judgment is entered after the mandate of the appellate court has been lodged in the cause, petition under Rule 3.16 will provide a means of review. Finally, in appropriate circumstances — as in the instant case wherein the order was entered following a non-final and unappealable voluntary nonsuit — writ of certiorari may lie as a means of securing review.”
In conclusion, we determine that the proper method of securing review of a cost judgment entered following a voluntary dismissal of a cáuse of action is by writ of cer-tiorari.
Therefore the interlocutory appeal is dismissed and pursuant to Section 59.45,2 F.S. 1967, F.S.A., the plenary appeal is treated as a petition for writ of certiorari, and the parties shall proceed accordingly.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Chatlos v. City OF Hallandale, 220 So. 2d 353 (Fla. 1968)…shall feel aggrieved by any judgment for costs, said judgment shall be reviewable in the appellate court upon petition, provided the petition is filed within 20 days after the entry of said judgment.” . City of Hallandale v. Chatlos, Fla.App. 1968, 211 So. 2d 53. . Manganelli v. Covington, Fla.App.3rd 1959, 114 So. 2d 320; In re Carol Florida Corp., Fla.App.3rd 1960, 118 So. 2d 837; Dade County v. Cross, Fla.App.3rd 1961, 127 So. 2d 141; Horner v. State, Fla. App.3d 1963, 148 So. 2d 553, and Dames v. Dames…
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Keener v. Lavonia A. Dunning, 238 So. 2d 113 (Fla. 4th DCA 1970)…ll, however, treat the notice of appeal and record as a petition for certiorari and review the order as on certiorari. F.S. 1967, Section 59.45, F.S.A.; Craft v. Clarembeaux, Fla.App.1964, 162 So. 2d 325; City of Hallandale v. Chatlos, Fla.App.1968, 211 So. 2d 53. In our opinion, the trial judge erred by not either taxing in whole or in part or disallowing the specified cost items. Where a cause is voluntarily dismissed by a plaintiff under Rule 1.420(a) (1), F.R. C.P., and a motion is filed in the cause to…
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Gaskins v. Woodruff, 233 So. 2d 403 (Fla. 4th DCA 1970)…entered following plaintiffs’ voluntary dismissal. The judgment allowed as costs only certain of the items sought by defendant. This petition should be and is treated as a petition for writ of certiorari. City of Hallandale v. Chatios, Fla.App.1968, 211 So. 2d 53. Upon review thereof and no abuse of the trial judge’s discretion being demonstrated, the petition for writ of certiorari is denied. CROSS, C. J„ and McCAIN and REED, JJ., concur.…
Authorities Cited
- Craft v. Marcel Clarembeaux, 162 So. 2d 325 (Fla. 2d DCA 1964)
- Watson v. City OF Hallandale, 193 So. 2d 195 (Fla. 4th DCA 1966)
- Horner v. State, 148 So. 2d 553 (Fla. 3d DCA 1963)
- Hattie L. Dames v. Dames, 156 So. 2d 532 (Fla. 3d DCA 1963)
- Giovannielli v. Lacedonia, 179 So. 2d 407 (Fla. 3d DCA 1965)