GULL CONSTRUCTION COMPANY, APPELLANT,
v.
J. Q. HENDRIE AND LOIS HENDRIE ET AL., APPELLEES
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Gull Construction Company, a lien claimant in a foreclosure action, sought to amend its answer to assert a counterclaim against the property owners. The trial court denied the motion to amend after the property owners filed a notice of voluntary dismissal. The appellate court reversed, holding that the timely filing of a motion to amend stayed the effect of the subsequent voluntary dismissal.
The court held that a properly and timely motion to amend pleadings pursuant to the rules of civil procedure stays or tolls the progress of the cause, including the effect of a subsequent notice of voluntary dismissal. The trial court erred in denying the motion to amend based on the voluntary dismissals rather than applying the standard that amendments should be freely permitted when justice requires.
[1] A timely motion to amend a pleading tolls or stays the progress of a cause until the motion is resolved.
[2] A voluntary dismissal of an action is ineffective if it prejudices a pending counterclaim or a pending motion for leave to file a counterclaim.
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Join FLexlaw to unlock all legal intelligence“The proper and timely taking of any action permitted by the rules of civil procedure tolls or stays the progress of the cause until such action is resolved either by the parties or the court as the rules in such case contemplate.”
Establishes the core principle that filing a motion to amend stays the effect of subsequent notices of voluntary dismissal
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Join FLexlaw to unlock all legal intelligenceGull Construction Company was joined as a defendant in a foreclosure action brought by another lienor, with property owners J.Q. and Lois Hendrie also…
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Appellant Gull Construction Company was one of several lien claimants joined as defendants in a foreclosure action brought by still another lienor. Named aá defendants also were appellees J. Q. and Lois Hendrie, record owners of the property under the lien, who filed a cross-claim against appellant. Appellant answered the Hendries’ cross-claim but did not initially cross-claim against anyone. Subsequently, the plaintiff and all other lienors with the exception of appellant filed notice of voluntary dismissals pursuant to rule 1.420(a), (b), R.C.P., 30 F.S.A. Thereafter, appellant moved to amend its answer to the Hendries’ cross-claim, so as to assert a counterclaim against them, and served a copy of such motion upon them by mail on January 27, 1971.1 The following day the Hendries served notice of the voluntary dismissal of their cross-claim against appellant. The trial judge, apparently because of all the voluntary dismissals, thereafter denied appellant’s motion to amend as aforesaid and this appeal ensued. We reverse.
In the present posture of the case only appellant and the Hendries are involved; and the obvious question before us is whether appellant’s motion to amend stayed the effect of the Hendries’ notice of voluntary dismissal served the day after. We think it did.
While it is true that rule 1.420(a) (2), R.C.P., relating to voluntary dismissals, prohibits such dismissal of an action to the prejudice of a pending counterclaim, and does not specifically contemplate a pending motion for leave to file one, we believe the rule is equally applicable in either case. The proper and timely taking of any action permitted by the rules of civil procedure tolls or stays the progress of the cause until such action is resolved either by the parties or the court as the rules in such case contemplate.2 So it is here. Appellant properly and timely sought to amend his pleadings pursuant to rule 1.190, R.C.P. The effect of a subsequent notice of voluntary dismissal was therefore stayed.
Now, as to the denial of the motion to amend which we are directly reviewing, we simply allude again to the rule relating to amendments generally, i. e., rule 1.190, supra. Expressly, amendments to pleadings should be permitted “freely when justice so requires.” 3 Here, however, the trial court apparently denied the motion to amend because of the voluntary dismissals, as noted, and not because justice did not require a contrary course. He erred in this respect.
Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings not inconsistent herewith.
MANN, C. J., and HOBSON, J., concur.
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Marine Contractors, Inc. v. Armco, Inc., 452 So. 2d 77 (Fla. 2d DCA 1984)…ry 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 with Florida Rule of Civil Procedure 1.080(b). Gull at 776, n. 1. The ques…
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Siler v. Lumbermens Mut. Cas. Co., 420 So. 2d 357 (Fla. 5th DCA 1982)…nder Rule 1.420(a)(l) was not authorized; any dismissal of the action must be under Rule 1.420(a)(2), which requires an order from the trial court. Ryder System, Inc. v. O’Connor, 369 So. 2d 980 (Fla. 4th DCA 1979); Gull Construction Co. v. Hendrie, 271 So. 2d 775 (Fla. 2d DCA 1973); Rice v. Fremow, 165 So. 2d 447 (Fla. 2d DCA 1964). Since dismissals under Rule 1.420(a)(2) require an order of court, the mere filing of a notice of voluntary dismissal is ineffective to dismiss the cause and does not cause a los…
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Surette v. Galiardo, 309 So. 2d 253 (Fla. 4th DCA 1975)…ssential requirements of law when it denied the plaintiffs’ motion to amend the complaint, which motion would have brought the insurers into the suit. Leave to amend should be freely granted. F.R.C.P. 1.190 (1974); Gull Construction Co. v. Hendrie, 271 So. 2d 775 (2d D.C.A.Fla.1973); Petterson v. Concrete Construction, Inc., 202 So. 2d 191 (4th D.C.A.Fla.1967). Thus we grant certiorari; quash the order denying plaintiffs’ motion [*254] to amend the complaint; and remand for further proceedings. This decisio…
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- State of Fla. ex rel. Park Towers Assocs., Ltd. v. The Dist. Court OF Appeal OF Fla., 221 So. 2d 136 (Fla. 1969)