Summary
In Bauer, the successful appellant, on remand, had filed an untimely motion to tax appellate fees against an individual attorney; the First District allowed this untimely motion to relate back to a similar, timely-filed motion against the attorney's firm.
Summary of this case from Ryan v. Countrywide Home LoansOpinion
No. 94-1422.
August 28, 1995.
An appeal from the Circuit Court for Duval County; Charles O. Mitchell, Judge.
James R. Thies, Sr., Orange Park, for appellants.
Carl Scott Schuler, Law Offices of Tygart Schuler, P.A., Jacksonville, for appellee.
ON MOTION FOR REVIEW OF ORDER DENYING MOTION TO TAX COSTS
Pursuant to Florida Rule of Appellate Procedure 9.400(c), appellants have filed a timely motion for review of an order denying their motion to tax costs, filed with the trial court following this court's decision reversing a contempt order. The trial court denied the motion to tax costs, apparently on the theory that the motion was directed to an incorrect party, i.e., the law firm of Tygart Schuler, and that an amended motion, naming Tygart individually, was filed more than 30 days after issuance of this court's mandate. See Fla.R.App.P. 9.400(a). No other basis for the denial has been asserted. We quash the order denying costs and direct the trial court to tax costs in favor of appellant, the amount to be determined by the trial court in accordance with rule 9.400(a).
We treat any outstanding motions for reconsideration as having been abandoned, by analogy to Fla.R.App.P. 9.020(g)(3).
The situation presented is analogous to that in which, under certain circumstances, an amendment to pleadings to correct a misnomer relates back to the date the original pleading was filed. See, e.g., Schachner v. Sandler; 616 So.2d 166 (Fla. 4th DCA 1993); Johnson v. Taylor Rental Center, Inc., 458 So.2d 845 (Fla. 2d DCA 1984). Tygart has not been prejudiced in any way by the misnomer in the original motion to tax costs, and, in fact, may have precipitated the misnomer by demanding a check be made for payment of his fee to the firm of Tygart Schuler and by signing the motion for contempt in the name of the law firm.
ERVIN, JOANOS and WOLF, JJ., concur.