BRIAN BEVAN, APPELLANT,
v.
JOSEPH P. D'ALESSANDRO, AS STATE ATTORNEY FOR THE TWENTIETH JUDICIAL CIRCUIT, APPELLEE
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Brian Bevan appeals a trial court's dismissal with prejudice of his replevin action for failure to prosecute. The court dismissed the action despite Bevan's voluntary dismissal filed five days before the hearing on the state's motion to dismiss. The appellate court reversed, holding that a party has an absolute right to voluntarily dismiss an action under Florida Rule of Civil Procedure 1.420(a)(1) prior to a hearing, which divests the trial court of jurisdiction to proceed.
A party has an absolute right to take a voluntary dismissal at any time prior to a hearing on a motion to dismiss for failure to prosecute, which divests the trial court of jurisdiction to subsequently hear the motion. This absolute right under Rule 1.420(a)(1) supersedes the party's obligation to comply with Rule 1.420(e), even when the voluntary dismissal appears to thwart the intent and purpose of the rule.
[1] A plaintiff has an absolute right to take a voluntary dismissal at any time prior to a hearing on a motion for summary judgment, before the jury retires, or before submis…
[2] A voluntary dismissal divests the trial court of jurisdiction to subsequently act on the case, absent exceptional circumstances such as fraud on the court.
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Join FLexlaw to unlock all legal intelligence“a party has an absolute right to take a voluntary dismissal at any time prior to a hearing on a motion for summary judgment, before the jury retires, or before submission of a nonjury case to the court for decision”
Establishes the fundamental rule that parties possess an absolute right to voluntary dismissal prior to certain procedural events
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Join FLexlaw to unlock all legal intelligenceBevan filed a replevin complaint on October 20, 1978, seeking return of a taped conversation allegedly owed by the state attorney. The case was dismis…
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BOARDMAN, Judge.
Brian Bevan appeals the trial court’s dismissal with prejudice of his replevin action for failure to prosecute. The court’s dismissal was entered after appellant had entered a voluntary dismissal. We reverse.
On October 20, 1978, appellant filed a complaint for return of a certain taped conversation, which he claimed he was entitled to pursuant to an agreement with the state attorney. It was dismissed with leave to amend, and appellant filed an amended complaint. Various motions were subsequently filed, one during January and the last on June 18, 1979. No further record activity occurred until June 27, 1980, when the state filed a motion to dismiss for failure to prosecute. Appellant received a copy of the motion, and on July 30, 1980, five days before the scheduled hearing on the motion, he voluntarily dismissed the case pursuant to Florida Rule of Civil Procedure 1.420(a)(1).
The hearing on the state’s motion nevertheless took place, with the result that the trial court dismissed the action with prejudice. The order was predicated upon appellant's failure to prosecute and his failure to comply with rule 1.420(e), which requires a plaintiff to show good cause, in writing, within five days before the hearing on a motion to dismiss for failure to prosecute, why his action should remain pending.
Though we have been unable to locate a case which precisely addresses the situation involving the use of rule 1.420(a)(1) to avoid operation of rule 1.420(e), a number of cases have held that a party has an absolute right to take a voluntary dismissal at any time prior to a hearing on a motion for summary judgment, before the jury retires, or before submission of a nonjury case to the court for decision. Fears v. Lunsford, 314 So. 2d 578 (Fla.1975); Ambassador Insurance Co. v. Highlands General Hospital, 383 So. 2d 254 (Fla.2d DCA 1980); Meyer v. Contemporary Broadcasting Co., 207 So. 2d 325 (Fla. 4th DCA 1968); Annot., 36 A.L.R.3d 1113, 1167 § 14(b).
This right is so entrenched that in Randall-Eastern Ambulance Service, Inc. v. Vasta, 360 So. 2d 68 (Fla.1978), the trial court was not allowed to set aside a voluntary dismissal even when a plaintiff who had taken a voluntary dismissal quickly asked the court to set it aside after discovering that the statute of limitations had run on his wrongful death action. Our supreme court held that the plaintiff’s voluntary dismissal divested the trial court of jurisdiction to subsequently relieve the plaintiff’s attorney of the consequences of his tactical error. We are aware that in Select Builders of Florida, Inc. v. Wong, 367 So. 2d 1089 (Fla.3d DCA 1979), the court carved out a narrow exception to the general rule, holding a voluntary dismissal inoperative in situations where fraud on the court was attempted by the filing of a voluntary dismissal. There, however, the plaintiff had received affirmative relief to which he was not entitled and sought to avoid correction of the trial court’s error by taking a voluntary dismissal. Here, on the other hand, appellant has received no affirmative relief, nor does his action in taking a voluntary dismissal rise to the level of a fraud on the court under the circumstances.
Therefore, although we feel appellant has thwarted the intent and purpose of the rule, his absolute right to the benefits of rule 1.420(a)(1) superseded his responsibility to comply with rule 1.420(e).
Accordingly, having determined that the trial court was without jurisdiction to hear appellee’s motion to dismiss after appellant’s voluntary dismissal, we REVERSE and REMAND the cause for proceedings consistent with this opinion.
HOBSON, Acting C. J., and DANAHY, J., concur.
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Pino v. The Bank OF NEW York, 121 So. 3d 23 (Fla. 2013)…on the court.10 Still others have required a showing both that the plaintiff used the voluntary dismissal to perpetrate fraud and that the plaintiff fraudulently secured “affirmative relief’ before taking the dismissal.11 In Bevan v. D’Alessandro, 395 So. 2d 1285, 1285-86 (Fla. 2d DCA 1981), for example, the Second District reversed the trial court’s entry of a dismissal with prejudice of the plaintiffs replevin action for failure to prosecute because the trial court’s order was entered after the plaintiff h…
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Romar Int'l, Inc. v. JIM Rathman Chevrolet/Cadillac, Inc., 420 So. 2d 346 (Fla. 5th DCA 1982)…ent, before the jury retires, or before submission of a non-jury case to the court for decision is guaranteed by Florida Rule of Civil Procedure 1.420(a)(1). Randle-Eastern Ambulance Service v. Vasta, 360 So. 2d 68 (Fla.1978); Bevan v. D’Alessandro, 395 So. 2d 1285 (Fla. 2d DCA 1981). A narrow exception exists where a fraud on the court is attempted by the filing of the voluntary dismissal, in which case the court may strike the voluntary dismissal and reinstate the matter. Bevan v. D’Alessandro; Select Builde…
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Patterson v. Allstate Ins. Co., 884 So. 2d 178 (Fla. 2d DCA 2004)…So. 2d 346 (Fla. 5th DCA 1982) (approving a voluntary dismissal after the defendant moved for sanctions pursuant to Florida Rule of Civil Procedure 1.310(g)(1) because the plaintiff noticed a deposition and failed to attend); Bevan v. D'Alessandro, 395 So. 2d 1285 (Fla. 2d DCA 1981) (approving a voluntary dismissal after the defendant moved to dismiss for failure to prosecute and the time had lapsed for the plaintiff to show cause why the action should not be dismissed). Nevertheless, several cases have reco…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978)
- Fears v. Muriel Booth Lunsford & the Ins. Co. of N. Am., 314 So. 2d 578 (Fla. 1975)
- Select Builders OF Fla., Inc. v. Wong, 367 So. 2d 1089 (Fla. 3d DCA 1979)
- Hal Meyer v. Contemporary Broad. Co., Inc., 207 So. 2d 325 (Fla. 4th DCA 1968)
- State v. Cramer, 383 So. 2d 254 (Fla. 2d DCA 1980)
- Ambassador Ins. Co. v. Highlands Gen. Hosp., 383 So. 2d 254 (Fla. 2d DCA 1980)