RITA E. AMBORY, JACQUELINE A. AMBORY, AND DONALD E. AMBORY, WHO SUES BY HIS NEXT FRIEND AND GUARDIAN, RITA E. AMBORY, APPELLANTS,
v.
VIVIAN L. AMBORY, APPELLEE
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The court held that a trial court cannot take further action after a plaintiff files a notice of voluntary dismissal.
Appellants filed a notice of voluntary dismissal after the trial judge orally announced he was granting the appellee's motion to dismiss. The trial co…
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BOARDMAN, Judge.
Appellants appeal a final order entered by the trial court dismissing with prejudice their amended complaint. We reverse.
After a hearing held on February 14, 1983, on appellee’s motion to dismiss, the trial judge orally announced that he was granting the motion. The next day the attorney for appellee received a letter from appellants advising that they had filed a ' notice of voluntary dismissal. On March 1, 1983, the trial court entered its formal order dismissing the cause with prejudice.
Appellants contend, and correctly, that it was error for the trial court to take any further action after the notice of voluntary dismissal was filed. A strict interpretation of Rule 1.420(a)(i), Florida Rules of Civil Procedure, supports their contention as does the applicable case law. See Gonzalez v. Mulreany, 375 So. 2d 621 (Fla. 3d DCA 1979) (wherein our sister court relied on the Florida Supreme Court’s interpretation of Rule 1.420 in Fears v. Lunsford, 314 So. 2d 578 (Fla.1975)). In Fears the court held: The rule is specific on this point. It states in unusual language, “the action may be dismissed by plaintiff without order of court ” by (1) service before trial or (2) stating on the record a notice of dismissal. No action is required by the court under the rule. Hence, a statement by the court that the notice is approved, or a motion to dismiss, if made, is granted, adds nothing to the finality of the dismissal. The only remaining action required by the court contemplated by the rule would be to advise the jury thereof in a jury case.
Id. at 579.
Accordingly, the order appealed is REVERSED.
OTT, C.J., and DANAHY, J., concur.
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Pino v. The Bank OF NEW York, 121 So. 3d 23 (Fla. 2013)…sal after the trial court had orally announced it would grant the defendant’s motion to involuntarily dismiss the case with prejudice but before the trial court had an opportunity to enter a written order of involuntary dismissal); Ambory v. Ambory, 442 So. 2d 1087, 1087-88 (Fla. 2d DCA 1983) (defendant attempted to set aside the plaintiff's voluntary dismissal, which was filed the day after the trial court orally announced that it was involuntarily dismissing the case but before the court entered a formal ord…
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Freeman v. Al Mintz, 523 So. 2d 606 (Fla. 3d DCA 1988)…took a voluntary dismissal, even though the voluntary dismissal was taken after the trial judge orally announced that he was granting an involuntary dismissal, the trial court was divested of jurisdiction to enter its formal order. Ambory v. Ambory, 442 So. 2d 1087 (Fla. 2d DCA 1983). Under rule 1.420, as interpreted by the supreme court in Fears v. Lunsford, the Freemans are correct; the trial court was without jurisdiction to dismiss the case. The second order appealed is the order striking the Freeman’s t…
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Colucci v. Greenfield, 547 So. 2d 224 (Fla. 3d DCA 1989)…ismissed, 528 So. 2d 1182 (Fla.), review denied sub nom. Coldwell Banker-Klock Co. v. Freeman, 534 So. 2d 398 (Fla.), appeal dismissed, 534 So. 2d 400 (Fla.1988); Marvella Assoc., Inc. v. Carney, 512 So. 2d 1111 (Fla. 2d DCA 1987); Ambory v. Ambory, 442 So. 2d 1087 (Fla. 2d DCA 1983); Gonzalez v. Mulreany, 375 So. 2d 621 (Fla. 3d DCA 1979). In addition, we hold that because intervention is “in subordination to, and in recognition of, the propriety of the main proceeding,” Fla.R.Civ.P. 1.230, the trial court w…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fears v. Muriel Booth Lunsford & the Ins. Co. of N. Am., 314 So. 2d 578 (Fla. 1975)
- Gonzalez v. Mulreany, 375 So. 2d 621 (Fla. 3d DCA 1979)
- Kline v. City OF Hialeah, 375 So. 2d 621 (Fla. 3d DCA 1979)