ROBIN GIACHETTI, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, ROBERT J. GIACHETTI, AND ROBERT J. GIACHETTI, INDIVIDUALLY, APPELLANTS,
v.
LAWRENCE DALTON JOHNSON ET AL., APPELLEES
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The Second District Court of Appeal reversed a trial court's award of attorneys' fees as costs in a personal injury action that was voluntarily dismissed by plaintiffs under Rule of Civil Procedure 1.420(d). The court held that absent statutory authorization or contractual provision, attorneys' fees cannot be awarded as costs upon voluntary dismissal.
Under RCP 1.420(d), courts are not authorized to award attorneys' fees as costs in an action unless authorized by contract or statute. The court aligned with the Third District's decision in Granoff v. Cherin and rejected the First District's contrary holding in Royal-Globe Insurance Cos. v. Indian River Gas Co.
[1] Attorneys' fees are not recoverable as costs in an action dismissed under RCP 1.420 unless authorized by contract or statute.
[2] A voluntary dismissal of an action under RCP 1.420 does not, in the absence of statutory or contractual authorization, entitle a party to recover attorneys' fees as costs…
Previewing 2 of 3 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“Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.”
The text of RCP 1.420(d) that the court interpreted as not authorizing attorneys' fees absent statutory authorization.
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed a personal injury action against defendants. Prior to trial, plaintiffs voluntarily dismissed the action under RCP 1.420. The trial c…
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SCHEB, Judge.
The sole question on this appeal is whether the trial court erred in awarding attorneys’ fees as costs to defendants/appellees where the plaintiffs/appellants .voluntarily dismissed a personal injury action under RCP 1.420.
Upon the plaintiffs/appellees’ voluntary dismissal prior to the trial of their pending action, the lower court granted the defendants/appellees’ motion for taxing costs and attorneys’ fees and awarded a judgment of $1,127.53 which included $1,100.00 attorneys’ fees.
RCP 1.420(d) provides in part: “Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.” Although the Supreme Court held in State ex rel. Royal Insurance Co. v. Barrs, 1924, 87 Fla. 168, 99 So. 668, that costs do not include attorneys’ fees in the absence of statutory authorization, we recognize a conflict in the decisions among the District Courts of Appeal in the application of Rule 1.420(d) to the question sub judice. In Granoff v. Cherin, Fla.App.3d 1972, 270 So. 2d 430, the Third District held the defendant was not entitled to recover his attorneys’ fees as costs in an automobile negligence action in which the plaintiff took a voluntary dismissal near the completion of the trial. To the contrary, in Royal-Globe Insurance Cos. v. Indian River Gas Co., Fla.App.1st 1973, 281 So. 2d 380, the First District denied a petition for writ of certiorari to review a cost judgment wherein the defendants, in a tort action that was voluntarily dismissed by plaintiff prior to trial, were awarded $259 for attorneys’ fees and travel costs. The Royal-Globe decision recited as authority for its position the cases of Troutman Enterprises, Inc. v. Robertson, Fla.App.1st 1973, 273 So. 2d 11, and Goldstein v. Great Atlantic & Pacific Tea Co., Fla.App.3d 1962, 142 So. 2d 115, however, as pointed out by Judge Wigginton in his dissent in Royal-Globe, these decisions dealt only with costs incurred in procuring depositions, photographs and payment of witness’ fees preparatory to trial.
Nor do we find City of Hallandale v. Chatlos, Fla.1970, 236 So. 2d 761, cited by defendants/appellees to be persuasive to uphold the lower court’s judgment since the Hallandale case involved a judgment for attorneys’ fees in favor of a landowner where the city voluntarily dismissed a condemnation action.1
We align this court with the opinion of the Third District and hold that under RCP 1.420(d), the court is not authorized to award attorneys’ fees as costs in an action unless authorized by contract or statute.2
Accordingly, the case is remanded to the lower court for entry of an amended cost judgment excluding attorneys’ fees.
BOARDMAN, Acting C. J., and GRIMES, J., concur. . See F.S. 73.091 which requires a petitioner in a condemnation action to pay all reasonable costs of the proceedings in the circuit court, including a reasonable attorneys’ fee to be assessed by that court.
. Federal RCP 41(a) provides that after service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, that “ . . . an action shall not bo dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper.” Cf. Fla. RCP 1.420(a). There is an obvious leeway here for the federal court to require payment of attorneys’ fees where deemed proper. While this approach may have a special appeal to a defendant where, the plaintiff takes a voluntary dismissal just prior to trial, the advisability of such an approach is a matter for those charged with the responsibility of promulgating court rules and finally, of course, for our Supreme Court to determine.
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Carola D. Allen v. Est. of Ellen C. Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980)…Askew, 260 So. 2d 492 (Fla.1972); 3 Fla.Jur.2d, Appellate Review, § 131. Attorney’s fees are properly costs in a case only when made so by statute. State ex rel. Royal Insurance Company v. Barrs, 87 Fla. 168, 99 So. 668 (1924); Giachetti v. Johnson, 308 So. 2d 143 (Fla.2d DCA 1975). Cf. McBain v. Bowling, 374 So. 2d 75 (Fla.3d DCA 1979). The Legislature in enacting chapter 78-275, Laws of Florida (Supp. 1978) clearly promulgated a new section to be known as section 57.105, Florida Statutes. The heading of cha…
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Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. OF Martin Cnty., 493 So. 2d 1136 (Fla. 4th DCA 1986)…ave jurisdiction to award attorney’s fees where the fees are authorized by statute or a contract between the parties. Hatch v. Dance, 464 So. 2d 713 (Fla. 4th DCA 1985); Reineke v. McKinstry, 445 So. 2d 361 (Fla. 4th DCA 1984); Giachetti v. Johnson, 308 So. 2d 143 (Fla. 2d DCA 1975). Accordingly, the order appealed from is reversed and the cause is remanded to the trial court with directions to determine reasonable attorney’s fees to be awarded to appellant. LETTS and WALDEN, JJ., concur.…
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Grasland v. Taylor Woodrow Homes Ltd., 460 So. 2d 940 (Fla. 2d DCA 1984)…pecifically pled and is considered a substantive part of the recovery. State ex rel. Royal Insurance Co. v. Barrs, 87 Fla. 168, 99 So. 668 (1924). Attorney’s .fees are properly costs only when authorized by contract or statute. Giachetti v. Johnson, 308 So. 2d 143 (Fla.2d DCA 1975). In Allen v. Estate of Dutton, 384 So. 2d 171 (Fla.5th DCA), petition for review denied, 392 So. 2d 1373 (Fla.1980), the court held that attorney’s fees may be awarded under section 57.105, Florida Statutes, as part of costs. The c…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The State of Fla. ex rel. Royal Ins. Co. v. Burton Barrs, 87 Fla. 168 (Fla. 1924)
- Minerva Goldstein and her husband v. Great Atl. & Pac. TEA Co., 142 So. 2d 115 (Fla. 3d DCA 1962)
- Culbertson v. Seacoast Towers E., Inc., 236 So. 2d 761 (Fla. 1970)
- City OF Hallandale v. Wiliam F. Chatlos, 236 So. 2d 761 (Fla. 1970)
- Troutman Enters., Inc. v. Robertson, 273 So. 2d 11 (Fla. 1st DCA 1973)
- Granoff v. Murray Cherin, 270 So. 2d 430 (Fla. 3d DCA 1972)
- Shannon v. State, 281 So. 2d 380 (Fla. 1st DCA 1973)
- Royal-Globe Ins. Cos. v. Indian River GAS Co., 281 So. 2d 380 (Fla. 1st DCA 1973)