DAVE HESS, INC., A FIORIDA CORPORATION, APPELLANT,
v.
BLACK ANGUS OF POMPANO, INC., ET AL., APPELLEES
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.
Dave Hess, Inc. appealed a circuit court's dismissal of its amended complaint, arguing that the trial court incorrectly applied Florida's two-dismissal rule to bar a partial voluntary dismissal. The Fourth District Court of Appeal reversed, holding that the two-dismissal rule applies only to dismissals of entire actions against all defendants, not partial dismissals against some defendants.
The two-dismissal rule applies only to dismissals of an entire action as to all defendants and does not apply to dismissals of claims against less than all defendants. Because the March 24 dismissal was partial, it did not trigger the two-dismissal bar, and appellant was entitled to amend as a matter of right since no responsive pleading had been filed.
[1] A voluntary dismissal of an entire action or controversy as to all defendants is required for the two-dismissal rule to apply.
[2] A voluntary dismissal of claims against only one or more, but less than all, of the named defendants does not trigger the two-dismissal rule.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the two dismissal rule applies only to dismissal of an entire action or controversy as to all defendants; it does not apply to a dismissal of any claim or cause of action against one or more, but less than all, of the defendants named in the complaint”
Establishes the key legal principle that the two-dismissal rule is limited to full dismissals, not partial ones
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDave Hess filed suit against eight defendants in four counts. Before any defendants filed responsive pleadings, Hess took a voluntary dismissal on Mar…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Responsive Pleading cases and more on FLexlaw
DOWNEY, Judge.
This is an appeal from a final judgment of the circuit court entered in favor of appellees, who were three of the defendants below. The question on appeal involves the application of Rule 1.420(a)(1), 30 F. S.A., RCP. Appellant sued appellees and five other defendants in four counts. After service of process was had but before responsive pleadings were filed, appellant on March 24, 1972, filed a notice of voluntary dismissal on all counts as to appellees and on Counts I and II as to the other named defendants, leaving Counts III and IV pending as to those defendants. Within a few days, and once again before any responsive pleadings were filed by any defendants, appellant filed an amended complaint in seven counts against the original eight defendants. Appellees moved to strike and to dismiss the amended complaint with prejudice pursuant to Rule 1.420(a)(1), on the ground that the voluntary dismissal of March 24, 1972, constituted a second voluntary dismissal by appellant of the same claims against appellees.
Appellees’ motion to strike and dismiss recited that appellant had sued appellees in the small claims court on the same causes of action and had taken a voluntary dismissal there. Thus, asserted appellees, Rule 1.420(a)(1), the two dismissal rule, required that the amended complaint be dismissed. On that basis the circuit court dismissed the amended complaint with prejudice.
There is . some question as to whether the dismissal of the small claims court cases was by notice or by court order. This distinction is significant because if the dismissal was by court order without prejudice, it was not chargeable against appellant under Rule 1.420(a)(1). Crump v. Gold House Restaurants, Fla.1957, 96 So. 2d 215, 65 ALR 2d 637. It appears from the record that appellant announced its intention to take a voluntary dismissal in open court and that the small claims court judgment merely confirmed what appellant had already accomplished under the rule.
Be that as it may, the two dismissal rule applies only to dismissal of an entire action or controversy as to all defendants; it does not apply to a dismissal of any claim or cause of action against one or more, but less than all, of the defendants named in the complaint. Scott v. Permacrete, Inc., Fla.App.1960, 124 So. 2d 887, Cooper v. Carroll, Fla.App.1970, 239 So. 2d 511. Therefore, although appellant on March 24, 1972, did file a notice of voluntary dismissal, such filing was insufficient to permit the circuit court to apply the two dismissal rule to appellant, because that notice did not involve all the defendants in the action. Since no responsive pleading had been filed by any defendant, appellant was entitled as a matter of right to file an amended complaint, without leave of court. Rule 1.190(a), RCP. Thus, the only effect the notice of voluntary dismissal of March 24, 1972, had was the withdrawal of appellant’s original circuit court complaint and the ’substitution therefor of appellant’s amended complaint.
We therefore hold that the circuit court erred in dismissing the amended complaint of March 29, 1972. Accordingly, the final judgment of dismissal is reversed and the cause remanded for further proceedings.
Reversed.
CROSS and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Deseret Ranches OF Fla., Inc. v. Bowman, 340 So. 2d 1232 (Fla. 4th DCA 1976)…). We agree with the trial court. Only an entire action may be voluntarily dismissed under Fla.R.Civ.P. 1.420(a)(1); there can be no partial dismissal, no dismissal of less than all causes of action. Dave Hess, Inc. v. Black Angus of Pompano, Inc., 288 So. 2d 286, 287 (Fla. 4th DCA 1974); Cooper v. Carroll, 239 So. 2d 511 (Fla. 3d DCA 1970); Scott v. Permacrete, Inc., 124 So. 2d 887, 889 (Fla. 1st DCA 1960). See also Smith, Kline & French Laboratories v. A. H. Robins Co., 61 F.R.D. 24 (E.D.Pa.1973); Etabliss…
-
Britt v. Knowles, 792 So. 2d 635 (Fla. 4th DCA 2001)…ut were entered by the county court upon respondent’s motions. Although the court dismissals were without prejudice, they are not chargeable against appellant for purposes of the rule 1.420(a)(1). See Dave Hess, Inc. v. Black Angus of Pompano, Inc., 288 So. 2d 286, 287 (Fla. 4th DCA 1974). Thus, the subsequent voluntary dismissal of the matter did not operate as an adjudication on the merits. [*636] Accordingly, we hold that the circuit court departed from the essential requirements of the law in affirming th…
-
Frengut v. Vanderpol, 927 So. 2d 148 (Fla. 4th DCA 2006)…n entire action or controversy as to all defendants; it does not apply to a dismissal of any claim or cause of action against one or more, but less than all, of the defendants named in the complaint.” Dave Hess, Inc. v. Black Angus of Pompano, Inc., 288 So. 2d 286, 287 (Fla. 4th DCA 1974). We conclude that the “entire controversy” in the case of a third party claim includes dismissal of the third party action where the third party plaintiff, as here, dismisses all claims against the third party defendant(s).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Crump v. Gold House Rests., Inc., 96 So. 2d 215 (Fla. 1957)
- Cooper v. Carroll, 239 So. 2d 511 (Fla. 3d DCA 1970)
- Scott v. Permacrete, Inc., 124 So. 2d 887 (Fla. 1st DCA 1960)