It Ain’t Over ‘Til It’s Over: The Common Law Exception to the Right of Voluntary Dismissal of Civil Actions
Fla. R. Civ. P. 1.420(a)(1) permits a plaintiff to voluntarily dismiss an action
without order of court before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision.
Notwithstanding the apparent “bright lines” found in this rule,1 some courts have found a common law exception which, if invoked by a defendant, might prevent an action from being voluntarily dismissed without prejudice.2 Because the common law exception is an ill-founded relic from cases that pre-date the Rules of Civil Procedure and creates unnecessary uncertainty, Florida courts should retreat from this exception.
The Service Experts Case
The common law exception was recently explained in Service Experts, LLC v. Northside Air Conditioning & Elec. Serv., Inc., 2010 WL 4628567 (Fla. 2d DCA Nov. 17, 2010) .3 In that case, the plaintiff, Service Experts, LLC, filed a notice of voluntary dismissal without prejudice after almost two years of contentious litigation. The defendants filed an emergency motion to strike Service Experts’ voluntary dismissal and argued, among other things, that the common law exception to voluntary dismissal should be applied to prevent the action from being dismissed. The common law exception, as argued by defendants and articulated in Ormond Beach Assocs. Ltd. v. Citation Mortgage, Ltd., 835 So. 2d 292 (Fla. 5th DCA 2002), provides that a court may strike a plaintiff’s notice of voluntary dismissal “where the defendant demonstrates serious prejudice, such as where he is entitled to receive affirmative relief or a hearing and disposition of the case on the merits, has acquired some substantial rights in the cause, or where dismissal is inequitable.”4
The defendants in Service Experts, LLC, contended that they acquired substantive rights in the action prior to the action’s dismissal. The trial court agreed with the defendants, concluding that the common law exception applied, and entered an order striking the voluntary dismissal.5 The trial court ruled that the defendants “acquired substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment, by making offers of judgment and by setting forth convincing allegations of fraud, all of which would be lost if the dismissal without prejudice were allowed to stand.”6
On appeal, the Second District Court of Appeal quashed the trial court’s order striking Service Experts’ voluntary dismissal.7 Applying the plain language of Rule 1.420 and the earlier decisions of Patterson v. Allstate Ins. Co., 884 So. 2d 178 (Fla. 2d DCA 2004), and Ormond Beach Assocs., the appellate court determined that the defendants could not have acquired substantial rights in the action.8 Although the defendants had filed a motion for summary judgment before Service Experts’ voluntary dismissal, it noted that Rule 1.420 clearly allows a plaintiff to file a dismissal any time before a hearing on a motion for summary judgment. The court further observed that Patterson was of no support because, unlike the defendants in Patterson who acquired substantial rights in the case by virtue of a final arbitration decision that entitled them to a disposition of the case on the merits, the Service Experts defendants could muster no evidence that a judgment would have been entered in their favor. Finally, the Second District Court of Appeal reasoned that, pursuant to Ormond Beach Assocs., the filing of an offer of judgment does not provide a substantial right to recovery, and the mere filing of a motion for sanctions by the defendants did not vest them with a right to have sanctions determined or awarded.9
The Dubious Genesis of the Common Law Exception
Although declining to apply the common law exception, the Service Experts court affirmed its continued existence and, like it had in Patterson, relied upon Ormond Beach Assocs.10 as authority for the common law exception.11 Ormond Beach Assocs., however, gives little support to these subsequent cases because its alleged sources for the exception do not address or apply the common law exception.12
In Ormond Beach Assocs., the plaintiff, Citation Mortgage, Ltd., served a notice of voluntary dismissal just days prior to a hearing on defendant Ormond Beach Associates Limited’s motion for summary judgment.13 Following the dismissal, the trial court entered an order finding that Ormond Beach Associates Limited’s summary judgment motion was moot.14 Ormond Beach Associates Limited appealed and argued that the trial court erred by permitting Citation Mortgage to dismiss the action because the dismissal denied it a substantive right to seek affirmative relief based upon its earlier filed offer of judgment.15
While disagreeing with Ormond Beach Associates Limited, the Fifth District Court of Appeal reviewed Rule 1.420 and stated “[t]he only recognized common law exception to the broad scope of [Rule 1.420] is in circumstances where the defendant demonstrates serious prejudice, such as where he is entitled to receive affirmative relief or a hearing and disposition of the case on the merits, has acquired some substantial rights in the cause, or where dismissal is inequitable.”16 The appellate court reasoned that, upon a voluntary dismissal without prejudice, a party has no right to recover attorneys’ fees pursuant to an offer of judgment and, thus, the common law exception did not apply.17
In articulating the common law exception, the Ormond Beach Assocs.,18 court reported that it relied upon Romar Int’l, Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So. 2d 346 (Fla. 5th DCA 1982), and Visoly v. Bodek, 602 So. 2d 979 (Fla. 3d DCA 1992). However, neither Romar Int’l, Inc., nor Visoly make any mention of the common law exception.
In Romar Int’l, Inc., the plaintiff voluntarily dismissed its action against defendants. Romar International, Inc., dismissed its action before the trial court heard a motion defendants filed seeking sanctions based upon Romar International’s failure to attend a deposition that the plaintiff noticed.19 The trial court, despite the voluntary dismissal and for reasons not disclosed in the appellate court’s opinion, entered an order awarding costs and attorneys’ fees to defendants. On appeal, the Fifth District Court of Appeal reversed the trial court and reasoned that the voluntary dismissal deprived the trial court of jurisdiction to consider the motion for sanctions.20 The Fifth District stated in dicta that “[a] narrow exception exists where a fraud on the court is attempted by the filing of the voluntary dismissal, in which case the court may strike the voluntary dismissal and reinstate the matter.” But the appellate court reversed the trial court’s decision finding that a trial court does not have “inherent jurisdiction after a voluntary dismissal” to award expenses pursuant to Rule 1.310.21 The Romar Int’l court did not discuss, in dicta or otherwise, the common law exception to a plaintiff’s right to voluntarily dismiss an action.
In Visoly, the trial court granted defendant Security Pacific Credit Corporation’s motion to strike the complaint as a sham.22 Thereafter, plaintiff Visoly requested to voluntarily dismiss his action pursuant to Rule 1.420, but the trial court denied Visoly’s request.23 On appeal, the Third District Court of Appeal affirmed the trial court’s decision based upon its finding that a motion to strike the complaint as a sham should be treated as a motion for summary judgment.24 Thus, the request for dismissal was untimely according to the language of Rule 1.420, which requires that a notice of dismissal be served before a hearing on a motion for summary judgment, or, by extension, before a hearing on a motion to strike the complaint as a sham.25 The Visoly court’s decision was based upon the language of Rule 1.420 and not upon any exceptions to a plaintiff’s right to voluntarily dismiss an action. The Visoly court did not discuss, in dicta or otherwise, the common law exception to a plaintiff’s right to voluntarily dismiss an action.
Given the lack of competent authority in Ormond Beach Assocs. for the common law exception to the right of a plaintiff to voluntarily dismiss an action without prejudice, it appears that the common law exception is a 2002 creation of the Fifth District Court of Appeal.
The Unacknowledged Past of the Common Law Exception
There are some older equity cases which lend support, albeit unacknowledged, to the Ormond Beach Assocs. court. For example, the U.S. Supreme Court in 1884 provided:
It may also be conceded that, as a general rule, a complainant in an original bill has the right, at any time upon payment of costs, to dismiss his bill. But this latter rule is subject to a distinct and well-settled exception, namely, that after a decree, whether final or interlocutory, has been made, by which the rights of a party defendant have been adjudicated, or such proceedings have been taken as entitle the defendant to a decree, the complainant will not be allowed to dismiss his bill without consent of defendant.26
Perhaps more relevant, Tilghman Cypress Co. v. John R. Young Co., 53 So. 939 (Fla. 1910), contains nearly identical language to that used in Ormond Beach Assocs.27 In Tilghman Cypress, the John R. Young Company filed a bill in equity pertaining to the conveyance of real property.28 More than two years after the action was initiated, the John R. Young Company sought and was granted a dismissal without prejudice.29 Defendants’ motion to vacate the order of dismissal was denied.30 On appeal, the Florida Supreme Court in its 1910 opinion stated that a plaintiff has the right to dismiss the action any time.
[W]hen the dismissal would not materially prejudice the rights of the defendant, yet if the defendant has entitled himself to affirmative relief, or to a hearing and disposition of the case on the merits, or has acquired some substantial right in the cause, or will be seriously prejudiced by a dismissal, or where unnecessary and prolonged litigation is apparent, or an agreement will be violated, or where it is inequitable, the cause will not be dismissed without prejudice; but the mere burden, expense, and annoyance to the defendant of another suit in the same controversy is not generally regarded as a sufficient ground for denying complainant’s application to dismiss without prejudice.31
Applying this standard to the case before it, the Tilghman Cypress court affirmed the trial court’s dismissal because the defendants had not sought any affirmative relief in their pleadings.32
The Current Application of the Common Law Exception
Ostensibly, Ormond Beach Assocs. borrowed language from Tilghman Cypress in its resurrection of the common law exception. Yet, applying the rule from archaic equity actions to modern actions is inappropriate. The broad discretionary rule found in Tilghman Cypress was prior to the creation of the Florida Rules of Civil Procedure and, perhaps more importantly, prior to the 1966 amendment to Rule 1.420’s predecessor, Rule 1.35.
In 1949, The Florida Bar submitted a proposed code of practice and procedure for adoption by the Florida Supreme Court. “The primary purpose of these rules was to abandon common law forms of pleading and procedure, and to substitute in their place a new type of procedure designed to better facilitate the disposition of litigation and assure a more just result.”33 In 1954, the proposed rules, including Rule 1.35, were codified as the Florida Rules of Civil Procedure.34
According to former Rule 1.35, an action could be dismissed by the plaintiff without order of court by “filing” a notice of dismissal, but the plaintiff was not entitled to a voluntary dismissal as a matter of right; rather, dismissal was a discretionary matter left to the trial judge.35 Effective January 1, 1966, Rule 1.35 was amended to replace the word “filing” with the word “serving.”36 With this alteration, the court’s discretion was removed, and the plaintiff had an absolute right to dismissal without an order of the court.37 The relevant portion of the current Rule 1.420 is identical, and courts acknowledge a plaintiff’s absolute right to dismissal.38
Nevertheless, the Patterson court recognized both the general history and absolute nature of Rule 1.420,39 Then struck a plaintiff’s voluntary dismissal based upon the common law exception. In Patterson, Joel Patterson sued Allstate Insurance Company for negligent failure to procure uninsured/underinsured motorist coverage and the action was referred to nonbinding arbitration.40 The arbitrator issued a decision in favor of Allstate, and Patterson failed to challenge the decision by requesting a trial de novo within 20 days as required by F.S. §44.103 (2004).41 After Allstate notified the court that a trial de novo had not been requested, Patterson attempted to file a notice of voluntary dismissal without prejudice.42 The trial court, instead, entered final judgment in favor of Allstate based upon the arbitrator’s decision, and Patterson appealed.43
On appeal, the Second District Court of Appeal affirmed the trial court’s final judgment and held that the common law exception applied.44 The court reasoned that according to the language of F.S. §44.103(5), if there is no request for a trial de novo, the arbitrator’s decision is referred to the presiding judge who shall enter orders and judgments necessary to carry out the terms of the decision.45 & #x201c;Thus, but for the voluntary dismissal, Allstate would be entitled to a judgment in its favor that would preclude further litigation of the same subject matter.”46 Therefore, Allstate acquired a substantial right, and the common law exception was applicable.
Although Patterson appears to be the only modern case to actually strike a plaintiff’s notice of voluntary dismissal, the decision illustrates the uncertainty created by a resurrection of the common law exception. This uncertainty does not need to be the case. Within Patterson ’s analysis of the law on voluntary dismissal, the Second District Court of Appeal cited its own two-decade old decision, Ambory v. Ambory, 442 So. 2d 1087 (Fla. 2d DCA 1983), in which the appellate court held that upon serving the voluntary dismissal, it was error for the trial court to take any further action, including entering a written order granting the defendant’s motion to dismiss.47 In Ambory, the trial judge orally granted the defendant’s motion to dismiss, but had yet to enter the written order dismissing the action with prejudice.48 The next day, and before entry of the written order, the plaintiff served a notice of voluntary dismissal.49 The court reversed and reasoned that “[a] strict interpretation of Rule 1.420(a)(i), Florida Rules of Civil Procedure, supports [this] contention as does the applicable case law.”50
The outcomes of these two cases from the Second District Court of Appeal are difficult to reconcile. In Ambory, the court decided to dismiss the action and, but for the plaintiff’s voluntary dismissal without prejudice, the action would have been dismissed with prejudice. In Patterson, the arbitrator made a decision and the court had all but to enter the formal order, but the court found that the defendant acquired a substantial right and that the plaintiff could not voluntarily dismiss the action. Apparently, the common law exception was not argued in Ambory ; however, the juxtaposition of these cases highlights the unpredictability created by a resurrection of the common law exception.
The Patterson court did not need to breathe life into the common law exception to reach its result. After the plaintiff failed to timely challenge the arbitration decision, all that was left for the trial court to do was enter “such orders and judgments as [were] required to carry out the terms of the decision.”51 The appellate court could have readily found that the case had progressed beyond submission of the matter to the fact-finder for a decision. The case, thus, had progressed beyond the events described in Rule 1.420(a)(1) and the time when the plaintiff could voluntarily dismiss the action without prejudice.52
Subsequent court decisions, which have not stricken notices of voluntary dismissal, have even less reason to refer to a common law exception and thereby create uncertainty for litigants.
The plain meaning of Rule 1.420(a)(1) is easily ascertained: A plaintiff may dismiss his or her action without prejudice before certain prescribed events. Although a defendant might be frustrated by not getting his or her day in court as a result of such a dismissal, it would be a great waste of party and judicial resources for a plaintiff who no longer wants to pursue his or her action to be compelled, by either uncertainty or court order, to continue an action because, even though the matter has not been submitted to a fact-finder, he or she may have gone past some unpredictable and unknown “line.” In a time when caseloads are expanding and judicial resources are decreasing, Florida’s courts should pull the plug on the common law exception and return to the plain language of Rule 1.420(a)(1). It should be over when it’s over.
1 See Patterson v. Allstate Ins. Co., 884 So. 2d 178, 180 (Fla. 2d D.C.A. 2004) (“Until the line drawn by [Rule 1.420] is crossed, the plaintiff’s right to a voluntary dismissal is ‘absolute.’”); see also Bevan v. D’Alessandro, 395 So. 2d 1285, 1286 (Fla. 2d D.C.A. 1981) (“A number of cases have held that a party has an absolute right to take a voluntary dismissal at any time prior to a hearing on a motion for summary judgment, before the jury retires, or before submission of a non-jury case to the court for decision.”).
2 Service Experts, LLC v. Northside Air Conditioning & Elec. Serv., Inc., 56 So. 3d 26, 29-30 (Fla. 2d D.C.A. 2010), identified three exceptions to the right of a plaintiff to voluntarily dismiss without prejudice its action: if there is fraud on the court; if the defendant can establish the common law exception to the right of voluntary dismissal; or if the plaintiff dismisses the case at a stage which is deemed the equivalent of a summary judgment. This article only addresses the putative common law exception.
3 The authors thank Marie A. Borland of Hill Ward & Henderson, P.A., and Dineen P. Wasylik of Conwell Kirkpatrick, P.A., for providing copies of their respective clients’ appellate briefs in Service Experts, LLC.
4 Service Experts, LLC, 56 So. 3d at 30.
5 Id. at 28.
7 Id. at 34. Service Experts sought relief through an appeal of the trial court’s order, but the Second District Court of Appeal treated Service Experts’ filings as a writ of prohibition.
8 Id. at 29-33.
9 Following Service Experts, LLC, there has been another case discussing, but not applying, the common law exception to a plaintiff’s ability to voluntarily dismiss an action without prejudice: Pino v. Bank of New York Mellon, 57 So. 3d 950 (Fla. 4th D.C.A. 2011). In Pino, the Bank of New York Mellon (BNY) filed a foreclosure action against Roman Pino. BNY claimed the underlying note had been lost and that BNY came to own the note through an assignment which it referenced in, but did not initially attach to, its pleadings. After Pino successfully argued that the failure to attach the assignment caused the complaint not to state a cause of action, BNY produced an assignment which was dated shortly before the action had been filed and which had been signed by an employee of BNY’s law firm. Pino moved for sanctions alleging that the assignment was fraudulent, and BNY voluntarily dismissed its action without prejudice.
Five months later, BNY filed a new foreclosure action against Pino. In the new action, BNY no longer claimed the note was lost, and BNY attached a new assignment, an assignment that was dated after the first action had been dismissed.
Pino moved, under
Fla. R. Civ. P.
1.540(b), to vacate the voluntary dismissal filed by BNY in the initial action alleging that BNY had committed a fraud upon the court. The trial court denied Pino’s motion, and the appellate court affirmed this order. The Fourth District Court of Appeal reasoned that because the notice of voluntary dismissal was filed prior to BNY obtaining any affirmative relief from the court, neither Rule 1.540(b) nor the common law exceptions to Rule 1.420 allowed the defendant to set aside a notice of voluntary dismissal. Rule 1.540(b) did not apply because there had been no order which adversely impacted Pino and from which he needed relief. The common law exception to Rule 1.420 was likewise inapplicable because it was limited to circumstances where a defendant demonstrates serious prejudice; however, the fraud exception to Rule 1.420, found in Select Builders of Florida, Inc. v. Wong, 367 So. 2d 1089 (Fla. 3d D.C.A. 1979), was more applicable. Ultimately, the court refused to strike the notice of voluntary dismissal, but certified a question to the Florida Supreme Court relating to the application of the fraud exception.
10 The Second District Court of Appeal also, arguably, relied upon its prior decision in Patterson v. Allstate Ins. Co., 884 So. 2d 178 (Fla. 2d D.C.A. 2004). However, Patterson, like Service Experts, LLC, only relied upon Ormond Beach Assocs. as authority for the common law exception.
11 The Second District Court of Appeal in Service Experts, LLC, after noting the seemingly absolute nature of a plaintiff’s right to voluntary dismissal, identified three limited exceptions to such right: 1) If there is fraud on the court; 2) if the defendant can establish the common law exception to the right of voluntary dismissal; or 3) if the plaintiff dismisses the case at a stage which is deemed the equivalent of a summary judgment. Service Experts, LLC, 56 So. 3d at 29-30. This article only addresses the putative common law exception.
12 Ormond Beach Assocs. also offers little support to Patterson v. Allstate Ins. Co., 884 So. 2d 178 (Fla. 2d D.C.A. 2004), an earlier decision from the Second District which relied upon its sister district’s opinion to affirm a trial court’s entry of final judgment on an arbitration award after the plaintiff attempted to voluntarily dismiss the action without prejudice.
13 Ormond Beach Assocs., 835 So. 2d at 294.
15 Id. at 296. Ormond Beach Associates Limited’s offer of judgment had been made pursuant to
Fla. Stat. §768.79.
16 Id. at 295.
17 Id. (citing MX Investments, Inc., v. Crawford, 700 So. 2d 640 (Fla. 1997)).
18 Id. at 295.
19 Romar Int’l, Inc., 420 So. 2d at 347.
20 Id. at 347-48; see also Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So. 2d 68, 69 (Fla. 1978) (“A voluntary dismissal under rule 1.420(a)(1)(i) divests the trial court of jurisdiction to relieve the plaintiff of the dismissal.”).
21 Romar Int’l, Inc., 420 So. 2d at 347-48.
22 Visoly, 602 So. 2d at 979.
26 Chicago & A.R. Co. v. Union Rolling-Mill Co., 109 U.S. 702 (1884); see also Sontag Inv. Co. of Indiana v. Nautilus Realty Co., 78 Fla. 529 (Fla. 1919); Veillard v. City of St. Petersburg, 87 Fla. 381 (Fla. 1924); Marshall v. Krantz, 93 Fla. 730 (Fla. 1927); Smith v. Milham, 94 Fla. 1159 (Fla. 1927); Florida Cent. & G. Railway v. Boswell, 98 Fla. 117 (Fla. 1929); Davant v. City of Brooksville, 130 Fla. 229 (Fla. 1937).
27 Ormond Beach Assocs., 835 So. 2d at 295 (“The only recognized common law exception to the broad scope of this rule is in circumstances where the defendant demonstrates serious prejudice, such as where he is entitled to receive affirmative relief or a hearing and disposition of the case on the merits, has acquired some substantial rights in the cause, or where dismissal is inequitable.”).
28 Tilghman Cypress, 53 So. at 939.
31 Id. at 940.
32 The court effectively interpreted its own discretionary rule similar to the present Rule 1.420, which mandates that “[i]f a counterclaim has been served by a defendant prior to the service upon the defendant of the plaintiff’s notice of dismissal, the action shall not be dismissed against defendant’s objections unless the counterclaim can remain pending for independent adjudication by the court.”
33 Florida East Coast Ry. Co. v. Lewis, 167 So. 2d 104, 106 (Fla. 1st D.C.A. 1964).
34 Id. at 107.
35 Meyer v. Contemporary Broadcasting Co., 207 So. 2d 325, 326 (Fla. 4th D.C.A. 1968); see also Meyer v. Solomon, 107 So. 2d 775, 779 (Fla. 3d D.C.A. 1958); Union Trust Co. v. Fields, 176 So. 2d 339, 339 (Fla. 2d D.C.A. 1965).
36 See Meyer, 207 So. 2d at 326; see also Fla. R. Civ. P. 1.420 (author’s cmt.).
37 Fears v. Lunsford, 314 So. 2d 578, 579 (Fla. 1975); Hibbard v. State Rd. Dept., 216 So. 2d 245, 248 (Fla. 2d D.C.A. 1968), decision quashed sub nom., Hibbard v. State Rd. Dept. of Fla., 225 So. 2d 901 (Fla. 1969); Contemporary Broadcasting Co., 207 So. 2d at 327; Briner v. Gilmore, 229 So. 2d 874, 875 (Fla. 2d D.C.A. 1969); Rich Motors, Inc. v. Loyd Cole Produce Exp., Inc., 244 So. 2d 526, 527 (Fla. 4th D.C.A. 1970); Kubicek v. S. Broward Hosp. Dist., 231 So. 2d 838, 838 (Fla. 4th D.C.A. 1970); Modular Const., Inc. v. Owens, 270 So. 2d 753, 754 (Fla. 3d D.C.A. 1972).
38 See Service Experts, LLC v. Northside Air Conditioning & Elec. Serv., Inc., 56 So. 3d 26, 29 (Fla. 2d D.C.A. 2010).
39 Patterson v. Allstate Ins. Co., 884 So. 2d 178, 180 (Fla. 2d D.C.A. 2004) (“Until the line drawn by this rule is crossed, the plaintiff’s right to a voluntary dismissal is ‘absolute.’” (citation omitted)).
44 Id. at 181.
45 Id. at 180.
51 Fla. Stat. §44.103(5) (2003).
52 See Visoly v. Bodek, 602 So. 2d 979, 979-80 (Fla. 3d D.C.A. 1992) (“The voluntary dismissal rule permits the plaintiff to voluntarily dismiss his action ‘at any time before a hearing on motion for summary judgment.’ The rule, however, does not specifically refer to motions to strike as sham. Nonetheless, as far as voluntary dismissals are concerned, we see no distinction between motions for summary judgment and motions to strike a pleading as sham. The motion to strike a complaint as sham ‘should be tested by the same standards as a motion for summary judgment’ since ‘[s]uch a procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. . . . ’”).
Kurt E. Lee is a board certified business litigation lawyer practicing with Kirk Pinkerton, P.A., from its Sarasota and Bradenton offices. He obtained his bachelor degree from the George Washington University and his law degree from the University of Florida Fredric G. Levin College of Law.
Tim W. Sobczak is an associate with Kirk Pinkerton, P.A., where his practice focuses upon commercial litigation. He obtained his bachelor degree from the University of Central Florida and his law degree from the University of Florida Fredric G. Levin College of Law.
This column is submitted on behalf of the Trial Lawyers Section, Craig Anthony Gibbs, chair, and D. Matthew Allen, editor.