PHILLIP ROUNDTREE, PETITIONER,
v.
HARTFORD ACCIDENT AND INDEMNITY, RESPONDENT
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Roundtree sought certiorari review of an order taxing costs from a previously dismissed action and staying proceedings in a refiled suit. The court held that while Rule 1.420(d) allows assessment of costs from a dismissed action when a party refiles based on the same claim, the costs must be assessed in the original action, not the subsequent one, and therefore the trial court's order was improper.
The court quashed the order because while Rule 1.420(d) authorizes assessment of costs from a dismissed action when a party refiles the same claim, those costs must be assessed and judgment entered in the original action, not in the later action. The court declined to address whether the rule applies only to voluntary dismissals.
[1] A trial court improperly taxes costs in a second action for expenses incurred in a previously dismissed action.
[2] A court shall stay proceedings in a new action until a party seeking affirmative relief complies with an order for payment of costs from a previously dismissed claim.
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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.”
Rule 1.420(d) mandates that costs must be assessed in the original dismissed action, not in a subsequent action
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Join FLexlaw to unlock all legal intelligenceRoundtree filed suit for personal injuries from an automobile accident but the action was dismissed without prejudice for failure to meet jurisdiction…
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PER CURIAM.
This is a petition for writ of certiorari in which the petitioner, plaintiff in the trial court, seeks review of an order granting respondent-defendant’s motion to tax costs and to stay further proceedings until such costs are paid by the plaintiff.
Plaintiff’s suit for personal injuries, arising from an automobile accident, was dismissed without prejudice for failure to meet the jurisdictional thresholds required to maintain a suit against a tort feasor under the Florida Automobile Reparations Reform Act (No Fault Insurance Act). No costs were assessed and no appeal was taken from this order of dismissal. On June 27, 1975, plaintiff filed another suit against appellees growing out of the same accident. On September 5, 1975, the trial court entered an order in this cause taxing costs against the plaintiff for expenses in the action previously dismissed. Rule 1.420(d), RCP, provides:
“(d) Costs. 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 and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.” (emphasis added)
Plaintiff contends that the rule provides that costs arising out of the first action cannot be assessed in the later action and further that the mandatory language of the statute that the court shall order payment of costs and shall stay the proceedings in the action thereafter commenced, is only applicable to voluntary dismissals.
Rule 1.420(d) provides that costs in any case dismissed thereunder shall be assessed and judgment for costs entered in that action. It is clear that the costs assessed were those incurred in the original action, and the order thereon was entered in the second action. Therefore, such order before us for review on certiorari was improperly entered. We need not reach and pass upon the question as to whether or not Rule 1..420(d) applies only to voluntary dismissals.
The order of the trial court is quashed.
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Rose Printing Co., Inc. v. Wilson, 602 So. 2d 600 (Fla. 1st DCA 1992)…ding the outcome of another action and if a new [*603] action is brought on the previously dismissed claim, the judge must stay the proceedings until its order for payment of costs is complied with); and Roundtree v. Hartford Accident and Indemnity, 327 So. 2d 882, 883 (Fla, 3d DCA 1976) (costs must be assessed in the dismissed action, not in a second action brought on the same claim). In light of these authorities, we conclude that the judge’s denial of Rose’s motion to tax costs was a departure from the es…
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Winford Lindsay & Assocs., Inc. v. Basil "Buddy" Cook, 637 So. 2d 72 (Fla. 5th DCA 1994)…ion until the party seeking affirmative relief has complied with the order. (Emphasis added). As the rule indicates, a cost award must be made in the same action in which the dismissal was obtained. Thus, in Roundtree v. Hartford Accident & Indem., 327 So. 2d 882 (Fla. 3d DCA 1976), the court invalidated a cost award made in a subsequent action for costs incurred in an earlier action and lifted a stay that had been entered in the subsequent action until payment of those costs. In so holding, the court relied…
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Billington v. L.B.A. Assocs., Inc., 777 So. 2d 1151 (Fla. 3d DCA 2001)
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