Hertz Corp. v. Brown 678 So. 2d 929

NESBITT, Judge.

Hertz Corporation, Vanesia Adkins, and Patricia Wright (referred herein collectively as Hertz) petition this court to issue a writ of common law certiorari to review an order rendered after the trial court, on its own motion, noticed and held a hearing for judgment of dismissal for lack of prosecution. In that order, the court lifted a stay which had been entered in 1992 pursuant to Florida Rule of Civil Procedure 1.420(d), for payment of a cost judgment. The court required payment to Hertz of the amount due as principal on the cost judgment, $26,859.09; the court also determined respondent was obligated to Hertz, pursuant to section 55.03, Florida Statutes (1995), for accrued interest through the date of issuance. However, the court deferred payment of the accrued interest until conclusion of the action.

Hertz argues that the trail court lacked the authority to lift the stay, when accrued interest due had not yet been paid. The appropriate method for seeking review of such an order is by petition for writ of common law certiorari. See Barry A. Cohen, P.A. v. LaTorre, 595 So.2d 1076 (Fla. 2d DCA 1992). Relying Rule 1.420(d) as well as Wilson v. Rose Printing Co., 624 So.2d 257 (Fla.1993), we grant the petition.

Rule 1.420(d) is unambiguous — costs are to be assessed in the action that is the subject of the voluntary dismissal:

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.

Furthermore, as stated in Rose Printing:

Where a nondismissing party seeks costs under this rule, a court is without authority to defer assessment pending disposition of a subsequent action. [Petitioners’] reliance on Coastal Petroleum v. Mobil Oil Corp., 583 So.2d 1022 (Fla.1991), for the proposition that a trial court has discretion to defer assessment is misplaced. The discretion referred to in Coastal Petroleum pertains solely to the amount of costs to be assessed in the dismissed suit.

Rose Printing, 624 So.2d at 258.

The instant cost judgment contains the language “for which sum let execution issue” and is clearly a judgment within the meaning of section 55.03. Thus, the statutory accrued interest on the judgment was an integral part of the costs which had to be paid before respondent could proceed. See § 55.03(2), Fla. Stat. (1995) (providing “[a]ny *931process, writ, judgment, or decree which is directed to the sheriffs of the state to be dealt with as execution shall bear, on the face of the process, writ, judgment, or decree, the rate of interest which it shall accrue from the date of the judgment until payment”)

Accordingly, while the trial court may revisit the issue of whether the action should be dismissed for lack of prosecution, the court was without authority to order the action to proceed without payment in full of all costs due, including accrued interest.

The petition is granted, the order lifting the stay is quashed, and the cause remanded.

JORGENSON, J., concurs.

COPE, Judge,

concurring.

I join the majority opinion. I agree that the question of whether the case should be dismissed for lack of prosecution cannot be considered at this time. Because that issue may recur at the conclusion of the case, it bears comment.

Plaintiff-respondent Brown voluntarily dismissed her lawsuit against petitioner-defendants The Hertz Corporation, Yanesia Adkins, and Patricia Wright. Plaintiff refiled the case. Defendants moved for a stay of the action under Florida Rule of Civil Procedure 1.420(d) pending assessment and payment of the costs of the first action. A cost judgment was entered for $26,859. Plaintiffs request to defer payment of costs from the first ease until the end of the second ease was denied.

Thereafter, approximately one year expired without record activity. The court issued an order to show cause why the action should not be dismissed for failure to prosecute.1 Plaintiff argued that because of limited financial means, she had not been able to raise the money to pay the $26,859 cost judgment, but she was about to complete the necessary arrangements. She argued that difficulty in raising the money constituted good cause for the lack of record activity. The trial court agreed and declined to dismiss the case. The court set a deadline for plaintiff to pay the $26,859 amount.

Defendants argued alternatively that the $26,859 amount was an inadequate amount to justify lifting the Rule 1.420(d) stay. Defendants reasoned that the cost judgment bore interest and that the plaintiff would be obliged to pay both the principal amount and the $5,828 interest thereon before being allowed to proceed. The trial court ruled that the plaintiff must pay the $26,859 cost amount, but deferred payment of interest until the conclusion of the second lawsuit.

The defendants petitioned for certiorari, seeking review of the order deferring interest. I concur with the majority’s analysis of that issue.

The defendants also requested certiorari review of the trial court’s decision not to dismiss the case for failure to prosecute. The majority opinion quite properly declines to reach that issue, because the order denying dismissal for failure to prosecute is not an appealable order, nor is it reviewable here by certiorari. Southwinds Riding Academy v. Schneider, 507 So.2d 782, 783-84 (Fla. 3d DCA 1987).

However, if plaintiff wins at trial, the court’s refusal to dismiss for failure to prosecute will undoubtedly be raised as a point on appeal from the final judgment. Consequently, I comment on the issue at this time.

Defendants argue that the case must be dismissed for failure to prosecute under authority of Tarken v. State Department of Transportation, 629 So.2d 258 (Fla. 3d DCA 1993). That argument appears to be correct — but I suggest that Tarken is wrongly decided.

In Tarken, the defendant had obtained a stay of the second-filed case until such time as the plaintiff paid the cost order from the first-filed, voluntarily-dismissed case. After the stay was entered, more than one year elapsed without record activity. The trial court granted a motion to dismiss for failure to prosecute and this court affirmed. This court reasoned that the plaintiff had to pay *932the cost order within one year, or plaintiff “could have sought to set aside the stay because she lacked the funds to pay and was therefore being denied access to the courts.”2 Id. at 259.

In my view, Tarken was wrongly decided on the issue of failure to prosecute. That is so because Rule 1.420(e), which governs failure to prosecute, contains several express exceptions. One of the explicit exceptions is that an action is not subject to dismissal for failure to prosecute where “a stay order has been filed_” Fla. R. Civ. P. 1.420(e). In Tarken, as in the present case, a stay order was entered by request of defendant. Under the plain words of Rule 1.420(e), once the action was stayed, it was not subject to dismissal for failure to prosecute.3

Notwithstanding the language of the rule, Tarken held that a stayed action could be dismissed for failure to prosecute. That is contrary to what the rule says, and apparently contrary to the Florida Supreme Court’s position in Psychiatric Associates v. Siegel, 610 So.2d 419, 426 (Fla.1992).

Litigants should be able to rely on the rules as written. We should revisit Tarken at an appropriate time. I concur with the concern in Tarken that a stayed action should not remain on the calendar indefinitely. However, that problem can be addressed, if need be, by having the court impose a reasonable deadline for the payment of the cost order. The advantage of that approach is that it informs the plaintiff of the deadline before, rather than after, the time has expired.4