Ambiguous Fee Provision in Lease Deemed Unenforceable
September 1st, 2012
Dismissed Florida Eviction’s Costs & Fees Must be Paid Prior to Filing a New Eviction Action.
A recent eviction action in Volusia County was abated by order of the court when it was determined that a landlord failed to pay costs and fees in a prior failed eviction attempt of the same tenants. The Florida Rules of Civil Procedure require that all costs and fees of a previously dismissed claim against the same adverse parties and same claims be paid in advance of any new actions being filed. See opinion below.
DAYTONA PROPERTY MANAGEMENT, et al, Plaintiff/Landlord, vs. BARBARA BURNES, Defendant/Tenant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2013 33831 COCI, Division 84. December 24, 2013. Honorable Dawn P. Fields, Judge. Counsel: D. Michael Clower, Daytona Beach, for Plaintiff. Jimmy Allen Davis, Law Offices of Jimmy Allen Davis, P.L., Deltona; and Amber Lynn Coleman, New Smyrna Beach, for Defendant.
THIS CAUSE, having come before the Court on Defendant’s Motion to Abate and New Action Which is based on or Includes the Same Claim Until Costs, Including Attorneys’ Fees Are Assessed and Paid in This Action, and the Court being fully advised in the premises, the Court does hereby
ORDER, ADJUDGE AND FIND as follows:
1. Rule 1.420(d) of the Florida Rules of Civil Procedure provides, with regard to voluntary dismissals,
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 claims previously dismissed as it may deem proper, and shall stay the proceedings in the action until the party seeking the affirmative relief has complied with the order.
2. Section 83.48 of the Florida Statutes defines costs to include attorneys’ fees. See Conde v. Izzo, 12 Fla. L. Weekly Supp. 595a (Broward Cty. Ct., 2005).
3. The Court retains jurisdiction to determine who the monies in the court registry will be disbursed to.
4. Plaintiff, DAYTONA PROPERTY MANAGEMENT must pay the costs including attorneys fees assessed by the Court before proceeding with a new eviction for non-payment which includes the sums owed by the Defendant when Plaintiff filed this action.
5. Defendant is the prevailing party in this case and is entitled to recover costs, including reasonable attorneys’ fees from the Plaintiff pursuant to §83.48, Fla. Stat. and Fla. R. Civ. P. 1.420(d).
6. Defendant’s Motion to Determine Entitlement to Costs, Including Attorney’s Fees is hereby GRANTED. The Court retains jurisdiction to award Defendant costs and reasonable attorney’s fees from Plaintiff. The Court retains jurisdiction to hear any other motions and grant any other relief in furtherance with this order and ruling in this case.
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