JEROME Z. GINSBURG, D/B/A ADVANTAGE LEASING & RENTAL, APPELLANT,
v.
JOHN CARNEY, WILLIAM B. SHEPHERD, AND JOSEPH E. GAYTON, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a plaintiff cannot voluntarily dismiss an action when funds are in the court's custody, rendering the trial court's order allowing withdrawal a nullity.
Ginsburg sued employees for misappropriating funds, which were placed in the court's registry. Ginsburg attempted to voluntarily dismiss the action du…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Misappropriation Of Funds cases and more on FLexlaw
FRANK, Judge.
In June of 1986, Ginsburg filed suit against two employees, Carney and Shepherd, based upon the belief they had conspired to misappropriate funds from his business. The disputed funds were in Carney’s possession; he transmitted the money to his attorney who in turn placed it in the court’s registry.
During the litigation, Ginsburg was ordered by the trial court to appear within thirty days for a deposition. A scheduling conflict arose and Ginsburg was unable to attend within the prescribed period. To avoid a violation of the trial court’s order, Ginsburg’s counsel filed a notice of voluntary dismissal without prejudice pursuant to rule 1.420(a)(l)(i) of the Florida Rules of Civil Procedure. Based specifically upon Ginsburg’s voluntary dismissal of the action, Carney filed a motion to withdraw the funds from the court’s registry. The trial court granted Carney’s motion and Ginsburg has appealed from that order. Notwithstanding Ginsburg’s procedural error in seeking to terminate the action through the filing of a notice of voluntary dismissal, that error does not redound to his detriment.
Rule 1.420(a)(1) of the Florida Rules of Civil Procedure provides that “[ejxcept in actions in which property has been seized or is in custody of the court, an action may be dismissed by plaintiff without order of the court....” The exception contained in the rule precludes the effective taking of a voluntary dismissal, where, as here, 'funds are in the custody of the court. See O’Sullivan v. City of Deerfield Beach, 232 So. 2d 33 (Fla. 4th DCA 1970). Thus, the order permitting Carney to recapture the money from the court’s registry was a nullity. See Marine Contractors, Inc. v. Armco, Inc., 452 So. 2d 77 (Fla. 2d DCA 1984).
The order granting Carney’s motion is vacated and this matter is remanded for further proceedings consistent with this opinion.
SCHOONOVER, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Baden v. Baden, 260 So. 3d 1108 (Fla. 2d DCA 2018)…ody" of the court. Other than Black's Law Dictionary, the daughters identify no authority to support their contention that this expansive view of "custody of the court" applies in the context of rule 1.420(a)(1). They cite to Ginsburg v. Carney, 514 So. 2d 1153, 1154 (Fla. 2d DCA 1987), which restates the rule: "The exception contained in the rule precludes the effective taking of a voluntary dismissal, where, as here, funds are in the 5For example, in its April 20, 2015, "order setting forth trustee's…
-
Nader + Museu I, LLLP v. Miami Dade Coll. (Fla. 3d DCA 2020)…the court. Therefore, the plain language of rule 1.420(a) and exception it describes precluded the bidder’s notice of voluntary dismissal from “concluding” the action under rule 1.525 and triggering its thirty-day deadline. See Ginsburg v. Carney, 514 So. 2d 1153, 1154 (Fla. 2d DCA 1987) (“The exception contained in the rule precludes the effective taking of a voluntary dismissal, where, as here, funds are in the custody of the court.”); Cigna v. United Storage Sys., Inc., 537 So. 2d 129, 130 (Fla. 5th DCA…
Authorities Cited
- O'Sullivan v. City OF Deerfield Beach, 232 So. 2d 33 (Fla. 4th DCA 1970)
- Marine Contractors, Inc. v. Armco, Inc., 452 So. 2d 77 (Fla. 2d DCA 1984)