PAUL DREHER, PETITIONER,
v.
AMERICAN FIRE AND CASUALTY COMPANY, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, RESPONDENT; PAUL DREHER, APPELLANT, V. AMERICAN FIRE AND CASUALTY COMPANY, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, APPELLEE
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Paul Dreher sought certiorari review of an order denying his notice of voluntary dismissal in a bench trial against American Fire and Casualty Company. The court held that a plaintiff may voluntarily dismiss a nonjury case without court order if the notice is filed before the case is submitted to the court for decision, which does not occur when the judge has granted leave for counsel to submit briefs.
A plaintiff may dismiss a nonjury cause without court order by serving a notice of dismissal before submission of the case to the court for decision. The case is not finally submitted when the court has granted leave to file briefs; submission occurs only after the briefs are filed or the time limit for filing expires.
“A plaintiff may dismiss his cause without court order by serving a notice of dismissal before submission of a nonjury case to the court for decision.”
Establishes the absolute right of a plaintiff to voluntarily dismiss without court order if proper timing is met.
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Join FLexlaw to unlock all legal intelligenceA bench trial was held without a jury. At the close of final arguments, the trial court granted counsel leave to submit briefs by a designated date to…
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Petitioner seeks certiorari to review an order denying his notice of voluntary dismissal.
Trial without jury was held. At close of final arguments, the court granted counsel leave to submit briefs substantiating ther respective positions by a designated date.
Before that date petitioner filed his notice of voluntary dismissal pursuant to *436F.R.C.P. 1.420(a) (1), 30 F.S.A.1 This was denied by the court.
A plaintiff may dismiss his cause without court order by serving a notice of dismissal before submission of a nonjury case to the court for decision. (Emphasis added.)
This court has recently recognized the absolute right of a plaintiff to voluntarily dismiss his case without order of the court.2
No Florida case has interpreted the meaning of “submission of a nonjury case to the court for decision,” however, other jurisdictions have construed similar language under analogous facts.
It has been held in Ohio 3 .that “final submission” of an action to the court contemplates its submission upon law and fact. The court reasoned that where a case is tried without a jury and the court, after conclusion of the evidence, grants leave to counsel to file briefs “the cause is not finally submitted until such * * * briefs are filed, or until such time limit for * * the filing * * * has expired.”
The same reasoning and result has been reached in Iowa 4 and Oklahoma.5
We find ourselves in accord with these decisions and conclude the dispute in the case sub judice was not submitted to the court for decision prior to service of the notice of dismissal. The significance of a judge permitting briefs to be filed lies m their service as useful aids to his ultimate decision on the matters before him.
Therefore, certiorari is granted with instructions to quash the order denying petitioner’s notice of dismissal.
WALDEN, C. J., and REED, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Briner v. Gilmore, 229 So. 2d 874 (Fla. 2d DCA 1969)…aint with leave to amend was interlocutory in nature and did not cut off plaintiff’s petitioner’s, right to file a voluntary dismissal.” (Emphasis supplied.) The Fourth District Court in Dreher v. American Fire and Casualty Company, Fla. App. 1969, 220 So. 2d 435, 436, held that: “A plaintiff may dismiss his cause without court order by serving a notice of dismissal before submission of a nonjury case to the court for decision. (Emphasis added.) “This court has recently recognized the absolute right of a p…
Authorities Cited
- Hal Meyer v. Contemporary Broad. Co., Inc., 207 So. 2d 325 (Fla. 4th DCA 1968)