Wednesday, August 5, 2009

Oral Representation To Court That Involuntary Dismissal Will Be Filed Is Binding

In Salinas v. Medina (3D08-1698), the Third District reviewed an order from the trial court denying a "Motion for Relief from Purported Voluntary Dismissal."

The parties appeared on the day of trial, however, before a jury was selected the plaintiff interpreted the trial court's comments to indicate it was striking a claim for treble damages. At that time the plaintiff’s attorney stated:

'The plaintiff will - - or I guess through this act is filing a voluntary dismissal without prejudice.' Then, in response to a question from defense counsel, the plaintiff’s counsel said "[a]nd I’ll file a pleading to this effect." The proceedings terminated at that point.
The defendants then filed a motion for fees and costs, however, the plaintiff never filed its voluntary dismissal and instead filed its motion for relief from purported voluntary dismissal which the trial court denied.

The Third District stated:

First, we agree with the plaintiff that the oral dismissal was ineffective. That is so because Florida Rule of Civil Procedure 1.420(a)(1) states "[A]n action may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record a notice of dismissal . . . ." The Florida Supreme Court has said that trial begins when a jury is selected. See State v. Melendez, 244 So. 2d 137 (Fla. 1971). The parties here agree that jury selection had not commenced. So, the verbal announcement of dismissal was legally insufficient to dismiss the case. This means that the case remains pending in the trial court.
The court then determined that based upon its first ruling, the order being appealed was a nonfinal nonappealable order and the court exercised its discretion to treat the appeal as a petition for certiorari.

The court then held that the trial court did not depart from the essential requirements of the law. The "representation was made on the record both to opposing counsel and the court. The assurance was given after plaintiff’s counsel had obtained his client's consent. We conclude that the plaintiff is bound thereby."

The court continued, "Here, however, not only did plaintiff's counsel make an oral announcement, he also specifically promised to file a written voluntary dismissal. Plaintiff cannot obtain the benefit he sought—a postponement of trial—while failing to file the required document he assured opposing counsel and the court he would file." The court concluded: "We deny certiorari and remand the matter to the trial court for the plaintiff to file the voluntary dismissal, failing which the court may dismiss the case without prejudice under Florida Rule of Civil Procedure 1.420(b)."

Notably, Judge CortiƱas dissented. He would have simply dismissed the appeal for lack of jurisdiction and felt the majority issued an advisory opinion.


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