Carbrell Corp. v. Phil C. Gallagher Associates, Inc.

KEHOE, Judge. Appellant, plaintiff below, appeals an order dated May 26,1977, entered by the trial court awarding appellee, defendant below, attorney’s fees. We reverse. During the course of this action on a promissory note, appellee filed a motion to compel discovery. Thereafter, appellant filed a motion for a protective order. These matters came on for hearing before the trial court at which time it entered an order, on April 18, 1977, granting appellee’s motion and requiring appellant to produce all documents requested thereby within 15 days from the date of the order. Before the expiration of the 15 days, appellant filed a notice of voluntary dismissal pursuant to Rule 1.420, Florida Rules of Civil Procedure. Thereafter, appellee filed a motion to assess reasonable expenses, including attorney’s fees. Attached to the motion was an affidavit on attorney’s fees. Neither the motion nor the affidavit made any reference to any costs incurred by appellee in the litigation. Upon hearing the motion, the trial court entered the order appealed awarding appellee reasonable expenses, including attorney’s fees, of $750. Further, the trial court made payment of this amount a condition precedent to a refiling of the action. The Supreme Court of Florida in Campbell v. Maze, 339 So.2d 202 (Fla.1976), has stated that costs taxable to a plaintiff (here appellant) do not include reasonable attorney’s fees. Rotondo v. Greene, 343 So.2d 671 (Fla.3d DCA 1977); and Granoff v. Cherin, 270 So.2d 430 (Fla.3d DCA 1972). See also Thibert v. Thibert, 106 So.2d 918 (Fla.3d DCA 1958). Further, because the dismissal occurred prior to the time that any sanctions were applicable under Rule 1.380, Florida Rules of Civil Procedure, attorney’s fees could not have been properly imposed under this Rule. Because the amount of the attorney’s fees awarded in the order appealed is indeterminable from any costs allowable pursuant to Rule 1.420, Florida Rules of Civil Procedure, the order must be reversed and the cause remanded for the court to assess any appropriate costs, excluding attorney’s fees. Reversed and remanded with directions.