THERESA KERGER STEIN, AS ADMINISTRATRIX OF THE ESTATE OF NORMAN H. STEIN, SR., DECEASED, AND THERESA KERGER STEIN, INDIVIDUALLY, APPELLANT,
v.
BAYFRONT MEDICAL CENTER, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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The court denied appellant's interlocutory appeal (treated as certiorari petition) from a stay order conditioning further litigation against Bayfront Medical Center on payment of previously taxed costs from a dismissed prior action.
A trial court has discretion under Rule 1.420(d) FRCP to stay a claim pending payment of costs taxed in a prior dismissed action, and such an order does not constitute a departure from the essential requirements of law.
[1] A trial court has discretion under Rule 1.420(d) FRCP to condition further litigation on payment of costs taxed in a prior dismissed action.
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Join FLexlaw to unlock all legal intelligenceAppellant sued Bayfront Medical Center for malpractice, voluntarily dismissed, and had costs of $534.22 taxed against her. She then filed a new suit a…
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GRIMES, Judge.
The appellant has filed an interlocutory appeal from a stay order entered pursuant to Rule 1.420(d) FRCP, 30 F.S.A. In a previous action, the appellant sued Bayfront Medical Center for malpractice. After taking a voluntary dismissal, costs were taxed against her in the amount of $534.22. Appellant then filed this suit against Bayfront Medical Center and a doctor, but her allegations against Bay-front were essentially the same as before. Upon motion of Bayfront, the court entered an order staying appellant’s claim against Bayfront until such time as she paid in full the costs previously taxed against her. Appellant opposed the motion upon grounds of indigency.
Interlocutory appeal is not a proper method of reviewing the order under attack. FAR 4.2, 32 F.S.A. However, the court will treat the appeal as a petition for certiorari. Alliance for Conservation of Nat. Resources v. Furen, Fla.App.1958, 104 So. 2d 803. Rule 1.420(d) requires that an order be entered with reference to costs but appears to give the court discretion concerning the terras of the order. The appellant has failed to show that the order entered in this case was without or in excess of the trial court’s jurisdiction or constituted a departure from the essential requirements of law. See Republic of Cuba v. Ritter, Fla.App.1961, 130 So. 2d 98.
The petition for certiorari is denied.
MANN, C. J., and BOARDMAN, J., concur.
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Wiley Ulee Pridgen v. Bd. OF Cnty. Comm'rs OF Orange Cnty., 389 So. 2d 259 (Fla. 5th DCA 1980)…larly courts have allowed an improperly filed interlocutory appeal to be treated as a petition for certiorari. Radio Communications Corp. v. Oki Electronics of America, Inc., 277 So. 2d 289 (Fla.4th DCA 1973); Stein v. Bayfront Medical Center, Inc., 287 So. 2d 401 (Fla.3d DCA 1973). Against this background of judicial precedents, the Florida Supreme Court adopted Florida Rule of Appellate Procedure 9.040(c), which provides: If a party seeks an improper remedy, the cause shall be treated as if the proper rem…
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Lauda v. H. F. Mason Equip. Corp., 407 So. 2d 392 (Fla. 3d DCA 1981)…, 360 So. 2d 68 (Fla.1978). A plaintiff who voluntarily dismisses an action is liable for costs incurred by the defendant and cannot proceed a second time until the costs have been paid, Fla.R.Civ.P. 1.420(d); Stein v. Bayfront Medical Center, Inc., 287 So. 2d 401 (Fla. 2d DCA 1974); see Randle-Eastern Ambulance Service, Inc. v. Vasta, supra; is faced with the prospect that a second voluntary dismissal will constitute an adjudication on the merits, Fla.R. Civ.P. 1.420(a)(1); Tinsley v. McDonald, 378 So. 2d 81…
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Zola Klein v. The Royale Grp., Ltd., 524 So. 2d 1061 (Fla. 3d DCA 1988)…te a stay in the several district courts of appeal has been reviewed by common law certiorari, Kahn v. Milon, 332 So. 2d 149 (Fla. 3d DCA 1976); Paley v. Cocoa Masonry, Inc., 354 So. 2d 945 (Fla. 2d DCA 1978); Stein v. Bayfront Medical Center, Inc., 287 So. 2d 401 (Fla. 2d DCA 1974) or by non-final appeal. Regan, Inc. v. Val-Ro, Ltd., 396 So. 2d 834 (Fla. 3d DCA 1981) and Price v. Hernando Beach, Inc., 286 So. 2d 279 (Fla. 2d DCA 1973). It appears that the better view is that the stay of order refusing to vac…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Alliance FOR Conservation OF Natural Res. IN Pinellas Cnty. v. Furen, 104 So. 2d 803 (Fla. 2d DCA 1958)
- Republic OF Cuba and Banco Nacional De Cuba v. Ritter, 130 So. 2d 98 (Fla. 3d DCA 1961)