McArthur Dairy, Inc. v. Guillen

• Decision Date: 28 May 1985
• Docket Number: Nos. 84-909,84-1428,s. 84-909
• Citation: 470 So.2d 747,10 Fla. L. Weekly 1329
• Parties: 10 Fla. L. Weekly 1329 McARTHUR DAIRY, INC., Armando Madrigal, and Florencio Aldo Madrigal, Appellants/Cross-Appellees, v. Olga GUILLEN and Cecilio Guillen, her husband, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 747

470 So.2d 747

10 Fla. L. Weekly 1329

McARTHUR DAIRY, INC., Armando Madrigal, and Florencio Aldo Madrigal, Appellants/Cross-Appellees, v. Olga GUILLEN and Cecilio Guillen, her husband, Appellees/Cross-Appellants.

Nos. 84-909, 84-1428.

District Court of Appeal of Florida,

Third District.

May 28, 1985.

Rehearing Denied July 1, 1985.

Dube' and Wright and Richard M. Gale, Miami, for appellants/cross-appellees.

Jon W. Burke and Linda Dakis, Miami, for appellees/cross-appellants.

Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

The only question in this case which we find merits our attention is the one presented on the plaintiffs' cross-appeal, namely, whether a plaintiff who has once voluntarily dismissed an action and, pursuant to Florida Rule of Civil Procedure 1.420(d), paid costs to the defendant as a requisite to maintaining a second action seeking the same relief can recover any of these costs upon prevailing in the second action. ¹ We answer this thus-far unanswered question affirmatively and reverse the order below which denied the recovery of such costs.

Florida Rule of Civil Procedure 1.420(d) provides:

"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."

The purpose of this rule requiring that costs of a voluntarily dismissed action be paid as a predicate to renewing the action is to insure that the plaintiff "bear the cost of using a voluntary dismissal as a tactical tool against a particular defendant." DeLuca v. Harriman, 402 So.2d 1205, 1207 (Fla. 2d DCA 1981), rev. denied, 412 So.2d 465 (Fla.1982). The rule, which has "the obvious salutary effect of discouraging repeated lawsuits on the same claim ...," Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234, 1235-36 (Fla. 4th DCA 1976), is designed to deter plaintiffs from using the voluntary dismissal rule to harass defendants. See Hacopian v. United States Department of Labor, 709 F.2d 1295 (9th Cir.1983). ² We believe that the Rule's abuse-prevention purpose is not disserved by permitting an ultimately successful plaintiff to recoup the costs of the earlier dismissed action which he has been compelled by the rule to pay.

While we recognize that the complete forfeiture of the costs of the dismissed action no matter what the outcome of the later tried action could also serve to deter plaintiffs from using the voluntary dismissal as a tool to harass, it seems to us that, given the vast array of legitimate and non-vexatious reasons a plaintiff may have for voluntarily dismissing an action, such an extreme sanction is unwarranted. Moreover, to deprive a plaintiff who ultimately prevails in a lawsuit from recouping the costs earlier paid by him as the price of his voluntary dismissal not only is in derogation of the law providing that the prevailing party shall recover costs, see § 57.041, Fla.Stat., but gives a windfall to the losing party.

We therefore hold that a plaintiff is entitled to recover those costs paid to a defendant which would have been expended by the defendant even if the case had not been voluntarily dismissed ab initio. Correlatively, we think it only fair, and thus hold, that where the plaintiff's voluntary dismissal causes a duplication in the defendant's costs, the plaintiff is not entitled to those costs, since the defendant would not have incurred them but for the voluntary dismissal. Thus, for example, if the plaintiff's action is voluntarily dismissed after the defendant has expended trial witness fees and like costs relating to the trial, such costs, because they must be expended again at a second trial, are a consequence of the voluntary dismissal and should not be recovered by the plaintiff, notwithstanding that the plaintiff ultimately prevails. On the other hand, if the defendant has been paid for the cost of taking a witness deposition, a cost which need not be incurred again in preparation for the second action, the prevailing plaintiff should recover this cost which he has been forced to pay to the defendant.

This view that the costs which the plaintiff's voluntary dismissal caused the defendant to expend are the sole costs that the plaintiff may not recoup is not unlike the view taken by federal courts, construing the non-mandatory federal rule, that the costs which the plaintiff's voluntary dismissal caused the defendant to expend are the sole costs that the plaintiff will be required to pay as a predicate to maintaining a second action. See, e.g., McLaughlin v. Cheshire, 676 F.2d 855 (D.C.Cir.1982)...