UNION TRUST COMPANY, APPELLANT,

v.

EDMUND FIELDS, APPELLEE

Fla. 2d DCA | 1965-06-18

No. 5222

ANDREWS, J., and McNATT, JOHN M., Associate Judge, concur.

176 So. 2d 339 Florida District Court of Appeal, Second District (1965) Positive Treatment

Cited by 6 cases

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.

Synopsis

The appellate court reversed a nonsuit judgment because the trial court mistakenly believed a plaintiff had an absolute right to take an involuntary nonsuit. The case was remanded for the trial court to exercise its discretion on the plaintiff's motion for voluntary dismissal.

Holding

No, a plaintiff is not entitled to take an involuntary nonsuit as a matter of right. The trial court must exercise its judicial discretion when considering such a motion.

Key Quotes

“Since it affirmatively appears that the court’s order was based upon a misconception of a controlling principle of law, we reverse and remand the cause.”
Establishes the basis for reversal and remand.

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Facts & Procedural History

After the plaintiff rested and the defendant moved for a directed verdict, the trial court announced it would grant the defendant's motion. The plaint…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Voluntary Dismissal Judicial Discretion Negligence Abuse Of Discretion

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Opinion of the Court

SMITH, Chief Judge.

The defendant in this negligence action appeals a final judgment of nonsuit upon a finding that a plaintiff has the privilege of taking an involuntary non-suit as a matter of right. Subsequent to this finding of the trial court we determined that a plaintiff is not entitled to take a nonsuit as a matter of right. Cook v. Lichtblau, Fla.App.1965, 176 So.2d 523. Opinion filed May 28, 1965. Since it affirmatively appears that the court’s order was based upon a misconception of a controlling principle of law, we reverse and remand the cause. This leaves remaining for our determination only the question of directions for further proceedings.

*340After presenting liis case in chief the plaintiff rested; defendant moved for a directed verdict and the court announced that it would grant defendant’s motion; whereupon, plaintiff announced that he took an involuntary nonsuit. Defendant objected to the announced nonsuit and moved for dismissal with prejudice. The court specifically found that plaintiff was entitled to take an involuntary nonsuit as a matter of right. It is apparent therefore that the court did not treat the plaintiff’s motion for nonsuit as a motion for voluntary dismissal in accordance with our further holding in the Cook case, supra. By acting on the misconception that plaintiff was entitled to a nonsuit as a matter of right, the court did not exercise any of the judicial discretion vested in it by Fla.R.C.P. 1.35, 30 F.S.A. The record on appeal does not contain the plaintiff’s evidence or the testimony excluded by the court’s ruling which started the series of events resulting in plaintiff’s announcement that he took an involuntary nonsuit. Therefore, we are unable to review the order appealed as one treating plaintiff’s motion for nonsuit as a motion for voluntary dismissal.1 We therefore remand2 with directions to the trial court to consider plaintiff’s motion for nonsuit as a motion for voluntary dismissal and then in the exercise of its sound judicial discretion either (1) dismiss the cause without prejudice and on such terms and conditions as shall be proper,3 (2) dismiss the action with prejudice on defendant’s motion, or (3) in the event he now concludes that both motions should have been denied and that ruling should have been reserved on defendant’s motion for directed verdict declare a mistrial.4

Reversed.

ANDREWS, J., and McNATT, JOHN M., Associate Judge, concur.

. Cf. Diamond v. United States. 5 Cir. 1959, 267 F.2d 23 (cert. denied, 1959, 361 U.S. 834, 80 S.Ct. 85, 4 L.Ed.2d 75) (dismissal without prejudice entered day before case listed for trial without notice to defendant vacated and cause remanded for hearing on motion to determine whether or not cause should have been dismissed without prejudice, and, if so, upon what terms and conditions, if any). In the present case, as in the Cook case, supra, the jury was dismissed before the trial judge exercised his discretion upon what, in legal effect, constituted a motion for dismissal without prejudice. In the present case, however, the trial judge is not necessarily foreclosed from exercising his discretion against granting the plaintiff’s motion because there will also be pending before him the defendant’s motion for dismissal with prejudice. Consequently, while a mistrial may possibly be appropriate, we do not conclude from the record before us that a mistrial must be declared.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Hal Meyer v. Contemporary Broad. Co., Inc., 207 So. 2d 325 (Fla. 4th DCA 1968)

…Under the prior rule it has been held that the plaintiff was not entitled to take a voluntary nonsuit or a voluntary dismissal as a matter of right but this was a discretionary matter left to the trial judge. Union Trust Co. v. Fields, Fla.App.1965, 176 So. 2d 339; Cook v. Lichtblau, Fla.App.1965, 176 So. 2d 523. However, the rule under consideration was substantially amended July 28, 1965, and effective January 1, 1966, and read as follows :1 “ * * * [A]n action may be dismissed by plaintiff without order o…
Dade Cnty. v. Peachey, 181 So. 2d 353 (Fla. 3d DCA 1965)

…he problem be [*356] cause it works the least violence upon the dispensation of justice in the individual case. Cf., Continental Aviation Corp. v. Southern Bell T. & T. Co., Fla.App.1965, 173 So. 2d 750; Union Trust Company v. Fields, Fla.App. 1965, 176 So. 2d 339; In Re Estate of Meigs, Fla.App.1965, 177 So. 2d 246. We find that we are not at liberty to adopt the course suggested by the appel-lee and indicated by Cook v. Lichtblau, supra, because in the instant case the jury had retired from the bar and no…
Elliot Sanford v. F. A. Chastain Constr., Inc., 183 So. 2d 222 (Fla. 3d DCA 1966)

…voluntary dismissal without prejudice, the final order pursuant to non-suit must be reversed and an order dismissing the causes with prejudice substituted therefor. It is pointed out that, as set forth in Union Trust Company v. Fields, Fla.App.1965, 176 So. 2d 339, a motion for voluntary dismissal by a plaintiff after he has rested and the defendant has moved for a directed verdict is not favorably regarded, and that a strong showing is necessary to warrant a voluntary dismissal at that late stage in the proc…

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Authorities Cited

Smith v. McEwen, 119 Fla. 588 (Fla. 1935)
Green v. Putnam, 93 So. 2d 378 (Fla. 1957)
Knight v. The City of Miami, 127 Fla. 585 (Fla. 1937)
Cook v. Lichtblau, 176 So. 2d 523 (Fla. 2d DCA 1965)
Padilla v. United States, 361 U.S. 834 (U.S. 1959)
Diamond v. United States, 361 U.S. 834 (U.S. 1959)
Diamond v. United States, 267 F.2d 23 (5th Cir. 1959)
The Motor Transit Co. v. Bethea, 127 Fla. 680 (Fla. 1937)

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