ELINOR HIBBARD, PETITIONER,
v.
STATE ROAD DEPARTMENT OF FLORIDA ET AL., RESPONDENTS
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The Florida Supreme Court resolved a conflict between its prior decision in Hancock v. Piper and a District Court of Appeal decision regarding whether a plaintiff may voluntarily dismiss an action after a trial court dismisses a complaint with leave to amend. The Court held that an order dismissing with leave to amend is interlocutory, not final, and therefore does not eliminate the plaintiff's right to file a voluntary dismissal.
The order dismissing the complaint with leave to amend was interlocutory in nature and did not eliminate the plaintiff's right to file a voluntary dismissal under Florida Rule of Civil Procedure 1.420(a). A plaintiff may voluntarily dismiss an action after such an interlocutory order as long as no further order has been entered by the court prior to service of the notice of dismissal.
“an order dismissing a cause for failure to state a cause of action and granting leave to amend was an interlocutory order, not a final decree, and that the Court still had control of the litigation”
Establishes the foundational principle that such dismissal orders do not terminate the trial court's jurisdiction or cut off plaintiff's procedural rights.
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Join FLexlaw to unlock all legal intelligenceHibbard filed a complaint seeking determination of her rights to a 25-foot strip of land in an eminent domain proceeding instituted by the State Road …
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This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 216 So.2d 245. Our jurisdiction is based on conflict between the decision sought to be reviewed and a prior decision of this Court.
Petitioner filed a complaint seeking a determination of her rights, if any, to a twenty-five (25) foot strip of land against which respondents, State Road Department and Sarasota County, had instituted eminent domain proceedings to acquire right-of-way. Other respondents, Palmer National Bank and Gulf-to-Bay Mobile Home Sites, Inc., claimed interests adverse to petitioner.
Respondents, State Road Department and Sarasota County, filed answers and respondents, Palmer National Bank and Gulf-to-Bay Mobile Home Sites, Inc., moved to dismiss the complaint for failure to state a cause of action. The trial court entered its order granting the motion to dismiss and allowed six (6) days within which petitioner could amend her complaint. A stipulation between all the attorneys was entered extending the time for filing an amended complaint, by ten (10) days. Within the time for filing an amended complaint, petitioner filed and served a notice of voluntary dismissal. Respondents, Palmer National Bank and Gulf-to-Bay then filed a motion for final judgment. Judgment was entered by the trial court dismissing the action with prejudice.
On appeal the District Court of Appeal, Second District, framed the issue presented for its determination as follows:
“[Wjhether a trial judge, who dismisses a case with leave to file an amended complaint, acted properly in entering a final judgment dismissing the cause with prejudice when the plaintiff, instead of filing an amended complaint within the time allotted, filed a voluntary dismissal.”
The District Court concluded that the trial court did not abuse its discretion in dismissing the cause with prejudice.
The decision of the District Court conflicts with Hancock v. Piper, 186 So.2d 489 (Fla.1966). In Hancock, this Court held that an order dismissing a cause for failure to state a cause of action and granting leave to amend was an interlocutory order, not a final decree, and that the Court still had control of the litigation. Since the order was merely interlocutory so that the trial court still had control of the litigation, this Court concluded that plaintiff’s filing of an amended complaint beyond the time limit allowed in the dismissal order was proper until a formal final judgment was entered by the court on motion.
Petitioner contends that a plaintiff has a right to voluntarily dismiss an action pursuant to Rule 1.420(a), Florida Rules of Civil Procedure, 30 F.S.A., after the court has dismissed the complaint with leave to amend, if no further order has been entered by the Court prior to the service of the notice of dismissal.
We agree. The order of the trial court dismissing the complaint with leave to amend was interlocutory in nature and did not cut off plaintiff’s, petitioner’s, right to file a voluntary dismissal.
Accordingly, certiorari is granted, the decision of the District Court is quashed and the cause remanded for further proceedings consistent herewith.
It is so ordered.
DREW, Acting C. J., CARLTON and ADKINS, JJ., and SPECTOR, District Court Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA 1982)…e opportunity to exercise his right to voluntarily dismiss the action after the court has dismissed the complaint with leave to amend if no further order has been entered prior to entry of final judgment. Hibbard v. State Road Department of Florida, 225 So. 2d 901 (Fla.1969); Heinz Paving & Asphalt Company, Inc. v. United States Fidelity & Guaranty Company, 360 So. 2d 29 (Fla. 4th DCA 1978). Ex parte motions are generally disfavored by the Florida Rules of Civil Procedure, see, e.g., Fla.R.Civ.P. 1.420, 1.090…
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Marine Contractors, Inc. v. Armco, Inc., 452 So. 2d 77 (Fla. 2d DCA 1984)…Vasta, 360 So. 2d 68 (Fla. 1978).3 However, before the notice of voluntary dismissal can become operative, it is equally clear that the party seeking affirmative relief must effect service of the notice. Hibbard v. State Road Department of Florida, 225 So. 2d 901, 902 (Fla. [*80] 1969); Gull Construction Co. v. Hendrie, 271 So. 2d 775 (Fla. 2d DCA 1973). See generally H. Trawick, Florida Practice and Procedure § 21-2, p. 262 (1983 ed.). Service under rule 1.420(a)(l)(i) is to be accomplished in accordance wi…
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Gate City v. Arnold Constr. Co., 243 So. 2d 637 (Fla. 4th DCA 1971)…by the trial judge, and (2) when the amended complaint was filed it did not name Sun & Surf as a defendant. Any provocative issues arising as a result of these events, appear to be resolved by Hibbard v. State Road Department of Florida, Fla.1969, 225 So. 2d 901, wherein our Supreme Court quashed an opinion of the Second District Court which held that a trial judge had not abused his discretion in dismissing a cause with prejudice where the plaintiff had failed to file an amended complaint within the allott…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hancock v. Wilford J. Piper and Alida Piper, 186 So. 2d 489 (Fla. 1966)
- Elinor Hibbard v. State Rd. Dep't of Fla., 216 So. 2d 245 (Fla. 2d DCA 1968)