MARTIN STONELY, APPELLANT,
v.
DANA MOORE AND THE DEXTER COMPANY, INC., APPELLEES
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Martin Stonely appeals a summary judgment dismissing his claims for constructive/resulting trust and accounting against Dana Moore and The Dexter Company. The appellate court reversed, holding that the trial court improperly granted summary judgment on counts not addressed in the defendants' motion and that constructive trusts involving real estate may be based on parol evidence despite the statute of frauds.
The court held that the notice of voluntary dismissal was properly disregarded because it was filed after the summary judgment hearing, at which point dismissal required stipulation or court order. The trial court erred in granting summary judgment on counts one and three that were not addressed in the defendants' motion. Summary judgment was also improper on count two because constructive or resulting trusts involving real estate can be based on parol evidence and thus cannot be defeated by the statute of frauds on a motion for summary judgment.
[1] A notice of voluntary dismissal filed after a hearing on a motion for summary judgment is a nullity.
[2] A plaintiff cannot unilaterally dismiss an action by notice after the hearing on a motion for summary judgment; dismissal at that stage requires stipulation or court orde…
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Establishes the procedural rule that voluntary dismissal by notice is only available before a summary judgment hearing; afterwards, court order or stipulation is required.
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Join FLexlaw to unlock all legal intelligenceStonely filed a three-count complaint against Moore and The Dexter Company seeking a constructive or resulting trust and an accounting. The defendants…
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COPE, J.
Martin Stonely appeals an adverse summary judgment in his suit for imposition of a constructive or resulting trust, and an accounting. We conclude that there must be further proceedings and remand for that purpose.
Defendants-appellees Dana Moore and The Dexter Company, Inc. moved for summary judgment on count two of the complaint filed by plaintiff-appellant Martin Stonely. The trial court entered summary judgment in favor of the defendants on all counts, and the plaintiff has appealed.
The initial question is one of jurisdiction. At the summary judgment hearing, the trial court took the case under advisement. Subsequent to the hearing, the plaintiff filed a notice of voluntary dismissal. Thereafter, the trial court entered a summary judgment in favor of the defendants.
We conclude that the notice of voluntary dismissal was a nullity. Florida Rule of Civil Procedure 1.420 provides in part that a plaintiff may voluntarily dismiss an action “before trial by serving ... a notice of dismissal at any time before a hearing on motion for summary judgment. ...” Fla. R. Civ. P. 1.420(a)(1). In the present case, the notice was not filed until after the hearing on the motion for summary judgment. At that point, the plaintiffs could not dismiss the action by filing a notice; a dismissal could be accomplished only by stipulation of the parties or by order of the court. See id. R. 1.420(a)(1), (2). Since the motion for summary judgment had already been argued, the trial court was entirely correct in disregarding the notice and issuing a ruling on the summary judgment motion.
On the merits, however, we conclude that the summary judgment should not have been entered. First, the defendants had moved for summary judgment on count two only. Since there had been no notice or motion as to counts one and three, summary judgment should not have been entered on those counts. See Kerrigan, Estess, Rankin & McLeod v. State, 711 So. 2d 1246, 1248 (Fla. 4th DCA 1998); Williford v. Melbourne Commercial Devel, Inc., 682 So. 2d 1234, 1235 (Fla. 5th DCA 1996); Oakley v. Oakley, 439 So. 2d 1044 (Fla. 4th DCA 1983).
Second, summary judgment should not have been entered on count two, which was a claim for a constructive or resulting trust. The trial court granted summary judgment on the basis of the statute of frauds. However, “constructive or resulting trusts involving real estate can be based on parol evidence.” Zanakis v. Zanakis, 629 So. 2d 181, 183 (Fla. 4th DCA 1993) (citations omitted); Names v. Dawkins, 624 So. 2d 349, 351 (Fla. 1st DCA 1993). See generally Marks v. Millman, 641 So. 2d 414 (Fla. 3d DCA 1993).
For the stated reasons, the summary judgment is reversed and the cause remanded for further proceedings consistent herewith.
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Garrison KEY v. Dieter Trattmann, 959 So. 2d 339 (Fla. 1st DCA 2007)…f law, the statute of frauds does not pertain. See, e.g., Williams v. Grogan, 100 So. 2d 407, 410 (Fla.1958) (“A trust which is created by operation of law is not within the statute of frauds and may be proved by parol evidence.”); Stonely v. Moore, 851 So. 2d 905, 906 (Fla. 3d DCA 2003) (reversing summary judgment entered on a claim seeking to establish a resulting or constructive trust where the trial court relied on the statute of frauds, because “ ‘resulting trusts involving real estate can be based on pa…
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Gelinas v. Forest River, Inc., 931 So. 2d 970 (Fla. 4th DCA 2006)…ime before a hearing on 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.”); Stonely v. Moore, 851 So. 2d 905, 906 (Fla. 3d DCA 2003) (notice of voluntary dismissal filed after summary judgment hearing was a nullity). In the case at bar, the summary judgment hearing took place and the motion for summary judgment was granted prior to Gelinas’s filing of the…
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Alvarez, Feltman & Da Silva, P.L. v. Citizens Prop. Ins. Corp., 388 So. 3d 1004 (Fla. 3d DCA 2024)…e two-dismissal rule, we affirm. See Fla. R. Civ. P. 1.420(a)(1) (permitting a plaintiff to voluntarily dismiss an action by filing a notice of voluntary dismissal “at any time before a hearing on motion for summary judgment”); Stonely v. Moore, 851 So. 2d 905, 906 (Fla. 3d ---PAGE 3--- DCA 2003) (“In the present case, the notice [of voluntary dismissal] was not filed until after the hearing on the motion for summary judgment. At that point, the plaintiffs could not dismiss the action by filing a not…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Imogene Varnes v. Dawkins, 624 So. 2d 349 (Fla. 1st DCA 1993)
- Kerrigan v. State, 711 So. 2d 1246 (Fla. 4th DCA 1998)
- Zanakis v. Zanakis, 629 So. 2d 181 (Fla. 4th DCA 1993)
- Marks v. Harris Millman and Valerie Millman, 641 So. 2d 414 (Fla. 3d DCA 1993)
- Williford v. Melbourne Commercial Dev., Inc., 682 So. 2d 1234 (Fla. 5th DCA 1996)
- Norris Oakley v. Eugenie Oakley, 439 So. 2d 1044 (Fla. 4th DCA 1983)