ELLIS S. RUBIN, APPELLANT,
v.
JACK D. GORDON, APPELLEE
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Plaintiff Rubin filed a libel action against defendant Gordon, but when the trial court indicated it would dismiss most of the complaint for failing to state a cause of action, Rubin requested dismissal without leave to amend so he could appeal directly to the appellate court. The court granted the motion to dismiss, and the appellate court dismissed Rubin's appeal, holding that he invited the error by requesting the dismissal and thus waived his right to appeal.
The appellate court held that Rubin invited the error by requesting dismissal and therefore waived his right to appeal. The court granted the motion to dismiss the appeal, reasoning that Rubin could not challenge an order he himself requested be entered.
“As the order of July 23, 1940, dismissing the cause was entered at the instance and request of the plaintiff, the appellant here, he cannot be heard to challenge the correctness of such order.”
Establishes the fundamental rule that a party who requests dismissal cannot later appeal that dismissal
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Join FLexlaw to unlock all legal intelligenceRubin filed a libel action against Gordon. The defendant moved to dismiss for failure to state a cause of action. After a hearing, the trial judge ind…
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The appellant, as plaintiff in the trial court, filed an action at law alleging libel of the plaintiff by the defendant. The defendant filed a motion to dismiss the complaint for failure to state a cause of action and a motion to strike portions of plaintiff’s complaint. A hearing was had at which time the trial judge stated that he was of the opinion that substantial portions of the complaint failed to state 'a cause of action but he requested memoranda of law from plaintiff and defendant in support of their respective positions. The appellee, as defendant, filed its memorandum of law and' the appellant-plaintiff submitted to the trial judge a letter which, excluding the salutation and the closing, reads as follows:
“Considering the indication of the Court that it intends to dismiss all paragraphs of the Complaint as not stating a cause of action for libel per se except that paragraph concerning an allegation posed in a form of a question; and further considering the memorandum of law submitted by the Defendant; and wishing to clarify the entire Complaint as either stating libel per se or not, it is respectfully requested that this Court grant the Motion to Dismiss filed by Defendant on the grounds that the Complaint does not state libel per se without leave to amend in libel per ser in order that the allegations might be resolved by the District Court of Appeal.
“This letter is respectfully written not in agreement with the contentions of the Defendant nor in agreement with the indications of the Court to rule against Plaintiff, but is done with the thought in mind that further delays can be avoided by presenting the Complaint in the Appellate Court.”
*825The court entered its order dismissing the action in the following language:
“THIS CAUSE came on to be heard before me upon the Defendant’s Motion to Dismiss and having heard from counsel for the respective parties and further having received a memorandum of law from the Defendant and the attached letter from Plaintiff, and being fully advised, it is,
“ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss is hereby granted, and that the Plaintiff’s Complaint be and the same is hereby dismissed * *
Thereafter, the plaintiff lodged its appeal in this court and the appellee moved to dismiss the appeal upon the ground that “the appellant, plaintiff below, invited the error he complains of by requesting the trial judge to enter the order appealed from by way of letter incorporated in the trial court’s orders of dismissal * *
It is appellant’s position that he did not in fact request the dismissal of his action but that he requested the trial court to either proceed to trial on the original complaint, which alleged libel per se, or dismiss the complaint rather than sustain an immaterial portion thereof, and that he did so in order that an immediate appeal could be perfected, thus expediting the judicial process. The appellee contends that when the plaintiff, instead of filing a memorandum of law in accordance with the court’s request, made an unqualified request that the cause be dismissed, he thereupon waived his right to appeal. The appellee relies upon the rule stated in Hawkins v. Perry, 146 Fla. 766, 1 So.2d 620, 621, where it was said:
“As the order of July 23, 1940, dismissing the cause was entered at the instance and request of the plaintiff, the appellant here, he cannot be heard to challenge the correctness of such order. See Dorman v. Dorman, 125 Fla. 280, 169 So. 867; Marx v. Withers, 119 Fla. 692, 160 So. 662; Borst v. Gale, 99 Fla. 376, 126 So. 290.”
On the authority of Hawkins v. Perry, supra, and the other cases cited therein, the instant appeal must be dismissed.
Moreover, it is our view that the procedure employed circumvented the normal channels of pleading, and in effect, attempted to make the appellate court the first court to consider and rule upon the sufficiency of plaintiff’s complaint. Such a procedure would, in effect, permit the plaintiff to do indirectly what he could not do directly under the Florida Rules of Civil Procedure. Therefore, the motion to dismiss this appeal is granted and the appeal is hereby dismissed.
It is so ordered.
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del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987)…which she could appeal, it may be that she is precluded from doing so under the doctrine that a party may not secure review of a judgment entered at his instance and request. See Hawkins v. Perry, 146 Fla. 766, 1 So. 2d 620 (1941); Rubin v. Gordon, 165 So. 2d 824 (Fla. 3d DCA 1964); cf. Lauda v. H.F. Mason Equip. Corp., 407 So. 2d 392, 394 n. 5 (Fla. 3d DCA 1981). The manner of our disposition of the case makes it unnecessary further to pursue this possibility. . Particularly in the light of the reservation…
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Sierra v. Pub. Health Tr. OF Dade Cnty., 661 So. 2d 1296 (Fla. 3d DCA 1995)…trial court was “without subject matter jurisdiction” and to add a citation to Turner v. Hubrich. The Sierras appeal from the amended final order of dismissal. We find that this appeal is controlled by this district’s decision in Rubin v. Gordon, 165 So. 2d 824 (Fla. 3d DCA 1964). That case involved an action for libel per se. The trial court orally announced that it was inclined to dismiss substantial portions of the complaint for failure to state a cause of action but it allowed the parties to submit mem…
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Sonson v. Nelson, 357 So. 2d 747 (Fla. 3d DCA 1978)…So. 2d 622 (Fla.1976). Turning first to the appeal of the defendant, we note that under the doctrine of invited error, the defendant may not move for a new trial and then assign as error the court’s order granting a new trial. See Rubin v. Gordon, 165 So. 2d 824 (Fla.3d DCA 1964); and Seaboard Coast Line Railroad Co. v. Hendrickson, 212 So. 2d 901 (Fla.2d DCA 1968). The appeal of the plaintiffs is likewise without merit because the argument that the Lassitter decision allows no punitive damage judgment wit…
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
- Borst v. Gale, 99 Fla. 376 (Fla. 1930)
- E. L. Hawkins de bonis non of the Estate of Wise Perry v. Perry, 146 Fla. 766 (Fla. 1941)
- Dorman v. Dorman, 125 Fla. 280 (Fla. 1936)
- Marx v. Withers, 119 Fla. 692 (Fla. 1935)