If Previously Dismissed Case is Refiled, Second Case Must Be Stayed Until Costs are Paid

Pursuant to Rule 1.420(a) of the Florida Rules of Civil Procedure ("the Rules"), a party may voluntarily dismiss a case without prejudice “before trial by serving . . . a notice of dismissal at any time before a hearing on a motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision . . . .”  A case dismissed without prejudice may be re-filed.  However, if a party re-files a second case based on or including the same claim against the same party, the trial court must stay the second case and order the party to pay the costs incurred by the adverse party in the previously dismissed case.  See Rule 1.420(d) of the Rules. The trial court has no authority to defer the collection of costs from the dismissed case or to refuse to stay the second case until the costs are paid.  Field v. Nelson, 380 So. 2d 547 (Fla. 2d DCA 1980).

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