DONALD GRIFFIN KEENER AND BRUCE BAKER, APPELLANTS,
v.
LAVONIA A. DUNNING, APPELLEE

Fla. 4th DCA | 1970-07-29
No. 69-617
CROSS, C. J., and MacMILLAN, HUGH, Associate Judge, concur.
238 So. 2d 113 Florida District Court of Appeal, Fourth District (1970) Positive Treatment
Cited by 12 cases

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Synopsis

In this appeal from a cost taxation order, the Fourth District Court of Appeal held that when a plaintiff voluntarily dismisses a personal injury action, a trial judge must rule definitively on a defendant's motion to tax costs rather than defer the ruling pending the outcome of a refiled action. The court quashed the portion of the order deferring cost taxation and remanded for the judge to make a final determination on the cost items.


Holding

The trial judge erred in deferring the taxation of costs. When a cause is voluntarily dismissed under Florida Rule 1.420(a)(1) and a motion to tax costs is filed, the judge must specifically rule on the taxability of each cost item—either taxing it in whole or in part, or disallowing it—and may not defer such ruling pending the outcome of other actions.


Headnotes

[1] A trial court abuses its discretion by deferring a ruling on the taxability of costs incurred by a defendant after the plaintiff voluntarily dismisses the action.

[2] Upon a plaintiff's voluntary dismissal of an action, the trial court must specifically rule on the taxability of each cost item sought by the defendant.

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Key Quotes

“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 tax costs, the trial judge should specifically rule in that cause on the taxability of each cost item sought to be taxed.”

Establishes the mandatory duty of the trial judge to rule definitively on cost items rather than defer

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Facts & Procedural History

Plaintiff Lavonia A. Dunning filed a personal injury action against defendants Donald Keener and Bruce Baker in Orange County Circuit Court. On July 1…

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Opinion of the Court
REED, Judge.

REED, Judge.

The plaintiff, Lavonia A. Dunning, filed a personal injury action against the defendants, Donald Keener and Bruce Baker, in the Circuit Court for Orange County, Florida. Prior to trial and on 1 July 1969, the plaintiff served a Notice of Voluntary Dismissal pursuant to Rule 1.420(a) (1), F.R.C.P., 30 F.S.A. On 2 July 1969 the defendants Keener and Baker filed and served a motion to tax costs. The trial court entered an order on this motion on 26 August 1969 which “deferred” a ruling on the taxation of costs incurred by those defendants for taking depositions of medical experts and for copies of certain divorce records and tax reports. The critical part of the order reads as follows:

“As to the items in categories 1, 4, and 8, taxation of costs is deferred. *114There is no way for the Court to determine whether these items would have been allowed the Defendant, had the cause gone to trial and judgment been for the Defendant. Any allowance at this time would be based on speculation. It appears to the Court that there is now pending Case No. 69-3974, being a refiling on this cause by the same parties. The best way for the Court to determine whether or not the items in category 1, 4, and 8 would have been allowable costs in the instant case is for the Court to defer action on these items until there is a final disposition in Case

No. 69-3974, to determine if these items are used at the trial in Case No. 69-3974 by Defendant.”

The defendants have taken a full appeal from this order.

The primary issue presented by the appeal is whether or not the trial judge erred in deferring the taxation of the aforementioned cost items.

At the outset we note that the order appealed from is not a final judgment and appealable as such. We will, 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 tax costs, the trial judge should specifically rule in that cause on the taxability of each cost item sought to be taxed. Thereafter, the trial judge should enter a judgment assessing against the dismissing party those items of costs determined to be taxable. He has, however, no authority to defer a ruling on costs pending the outcome of other actions. In our opinion such is the necessary implication of Rule 1.420(d) which states in part:

“Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. 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 same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper * * (Emphasis added.)

We recognize that the taxation of costs is a matter which rests largely in the discretion of the trial court. But where costs are incurred in the taking of depositions and the acquisition of documentary evidence, these costs should not be disallowed merely because the use of the depositions and the documentary evidence was obviated by a voluntary dismissal. Compare Goldstein v. Great Atlantic & Pacific Tea Company, Fla.App.1962, 142 So.2d 115. With respect to the cost items here involved, that is, those items the taxing of which was “deferred” the trial judge should tax in whole or in part or disallow any item, depending upon his interpretation of the reasonableness of its amount and the necessity for incurring it.

That portion of the order quoted above is quashed. In all other respects the order on review is approved. On remand the trial judge is directed to enter an order either taxing in whole or in part or disallowing the taxation of the cost items above mentioned.

We have reviewed the other two points raised in appellants’ brief, but conclude that they are without merit.

Certiorari is granted and the cause is remanded with instructions.

CROSS, C. J., and MacMILLAN, HUGH, Associate Judge, concur.


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Citator

Cited By

  • Gordon v. Warren Heating & AIR Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976)
    …). Secondly, the appellant should have been awarded costs and attorney’s fees immediately following dismissal of the first action. The trial court has no authority to defer a ruling on costs pending the outcome of another action. Keener v. Dunning, 238 So. 2d 113 (Fla.4th DCA 1970). Fla.R.Civ.P. 1.420(d) states unequivocally that, “Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.” (Emphasis supplied.) Furthermore, the same rule makes it mandatory,…
  • Rose Printing Co., Inc. v. Wilson, 602 So. 2d 600 (Fla. 1st DCA 1992)
    …. 2d 353, 354 (Fla.1968), Barry A. Cohen, P.A. v. LaTorre, 595 So. 2d 1076 (Fla. 2d DCA 1992); Coastal Petroleum Co. v. Mobil Oil Corp., 550 So. 2d 158, 159 (Fla. 1st DCA 1989), rev’d on other grounds, 583 So. 2d 1022 (Fla. 1991); Keener v. Dunning, 238 So. 2d 113, 114 (Fla. 4th DCA 1970); and Craft v. Clarembeaux, 162 So. 2d 325, 327 (Fla. 2d DCA 1964), reject Wilson’s jurisdictional argument, and quash the trial court’s order. Wilson was formerly employed as Rose’s general manager pursuant to a written emp…
    1 / 2
  • Troutman Enters., Inc. v. Robertson, 273 So. 2d 11 (Fla. 1st DCA 1973)
    …use remanded for further proceedings consistent with the views herein set forth. SPECTOR, C. J., and JOHNSON, J., concur. . Goldstein v. Great Atlantic & Pacific Tea Company, (Fla.App.1962) 142 So. 2d 115, 118. . Keener v. Dunning, (Fla.App.1970) 238 So. 2d 113, 114. . City of Hallandale v. Chatlos, (Fla.1970) 236 So. 2d 761, 763.…

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