Wednesday, March 30, 2011

En Banc Fourth District Relating To Striking A Voluntary Dismissal, Question Certified

Update: The Fourth District granted a motion for clarification and released THIS opinion on March 30, 2011.  It appears the clarification indicates the attorneys referred to the Florida Bar were not the appellate attorneys.  The opinion was written by Judge Warner and Chief Judge Gross, Judge Stevenson, Judge Taylor, Judge May, Judge Damoorgian, Judge Ciklin, Judge Gerber, Judge Levine and Judge Conner concurred. Judge Hazouri was recused.  Judge Polen filed a dissenting opinion. The dissenting opinion was written by Judge Farmer, who has since retired from the Court.  Judge Polen filed the dissenting opinion as he agreed with what Judge Farmer had written.

The original opinion was discussed on February 2, 2011 in the post below:

In Pino v. Bank of New York Mellon (4D10-378), sitting en banc, the Fourth District released an opinion affirming the trial court's "denial of [the appellant's] motion under Florida Rule of Civil Procedure 1.540(b) to vacate a voluntary dismissal." The court stated:
BNY Mellon commenced an action to foreclose a mortgage against the defendant. The mortgage attached to the complaint specified another entity, Silver State Financial Systems, as lender and still another, Mortgage Electronic Registration Systems, as mortgagee. The complaint alleged that BNY Mellon owned and held the note and mortgage by assignment, but failed to attach a copy of any document of assignment. At the same time, it alleged the original promissory note itself had been “lost, destroyed or stolen.” The complaint was silent as to whether the note had ever been negotiated and transferred to BNY Mellon in the manner provided by law.
The defendant initially sought dismissal for failure to state a cause of action, arguing that in light of the claim of a lost instrument, the absence of an assignment of mortgage was a critical omission. BNY Mellon responded by amending the complaint only to attach a new unrecorded assignment, which happened to be dated just before the original pleading was filed.
In response to the amended complaint, the appellant/defendant moved for sanctions and the appellee/plaintiff dismissed the complaint.
Five months later, BNY Mellon refiled an identical action to foreclose the same mortgage. The new complaint no longer claimed the note was lost and attached a new assignment of mortgage dated after the voluntary dismissal. In the original, dismissed action, the defendant filed a motion under rule 1.540(b), seeking to strike the voluntary dismissal in the original action on the grounds of fraud o n the court and for a dismissal of the newly filed action as a consequent sanction, requesting an evidentiary hearing. The trial court denied the motion without an evidentiary hearing, essentially holding that, because the previous action had been voluntarily dismissed under rule 1.420, the court lacked jurisdiction and had no authority to consider any relief under rule 1.540(b).
The Fourth District stated:
We affirm the trial court’s refusal to strike the notice of voluntary dismissal. Neither rule 1.540(b) nor the common law exceptions to that rule allow a defendant to set aside the plaintiff’s notice of voluntary dismissal where the plaintiff has not obtained any affirmative relief before dismissal.
***
Here, we do not view it as an appropriate exercise of the inherent authority of the court to reopen a case voluntarily dismissed by the plaintiff simply to exercise that authority to dismiss it, albeit with prejudice. Only in those circumstances where the defendant has been seriously prejudiced, as noted in Romar International, should the court exercise its inherent authority to strike a notice of voluntary dismissal. The defendant in this case does not allege any prejudice to him as a result of the plaintiff’s voluntary dismissal of its first lawsuit. Indeed, he may have benefitted by forestalling the foreclosure.
The appropriate procedure is to follow Rule 1.420. Upon the voluntary dismissal, Pino would be entitled to his costs and possibly his attorney’s fees. See Fleet Servs. Corp. v. Reise, 857 So. 2d 273 (Fla. 2d DCA 2003). The court can require payment as a precondition to the second suit. See Fla. R. Civ. P. 1.420(d). Moreover, a referral of the appellee’s attorney for a violation of the Code of Professional Responsibility for filing the complaint with the alleged false affidavit is in order.
I wanted to add that appellate counsel for the appellee was not involved in the trial court and is not who the court is referring to the Florida Bar.

The Court also certified the question to the Florida Supreme Court as one of great public importance:
We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents. The defendant has requested a denial of the equitable right to foreclose the mortgage at all. If this is an available remedy as a sanction after a voluntary dismissal, it may dramatically affect the mortgage foreclosure crisis in this State. Accordingly we certify the following question to the Florida Supreme Court as of great public importance:
DOES A TRIAL COURT HAVE JURISDICTION AND AUTHORITY UNDER RULE 1.540(b), Fla. R. Civ. P., OR UNDER ITS INHERENT AUTHORITY TO GRANT RELIEF FROM A VOLUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?
The opinion was written by Judge Warner and Chief Judge Gross, Judge Stevenson, Judge Taylor, Judge May, Judge Damoorgian, Judge Ciklin, Judge Gerber, and Judge Levine concurred. Judge Polen filed a dissenting opinion. The dissenting opinion was written by Judge Farmer, who has since retired from the Court. Judge Polen filed the dissenting opinion as he agreed with what Judge Farmer had written.

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