Summary
approving a voluntary dismissal when the motion was made after the trial court orally granted the defendant's motion to dismiss with prejudice but before the court entered a written order
Summary of this case from Patterson v. Allstate Ins. Co.Opinion
No. 83-640.
December 21, 1983.
Appeal from the Circuit Court, Collier County, Hugh D. Hayes, J.
Daniel D. Peck of Peck Peck, Naples, for appellants.
Michael J. Volpe of Monaco, Cardillo, Keith Volpe, Naples, for appellee.
Appellants appeal a final order entered by the trial court dismissing with prejudice their amended complaint. We reverse.
After a hearing held on February 14, 1983, on appellee's motion to dismiss, the trial judge orally announced that he was granting the motion. The next day the attorney for appellee received a letter from appellants advising that they had filed a notice of voluntary dismissal. On March 1, 1983, the trial court entered its formal order dismissing the cause with prejudice.
Appellants contend, and correctly, that it was error for the trial court to take any further action after the notice of voluntary dismissal was filed. A strict interpretation of Rule 1.420(a)(i), Florida Rules of Civil Procedure, supports their contention as does the applicable case law. See Gonzalez v. Mulreany, 375 So.2d 621 (Fla. 3d DCA 1979) (wherein our sister court relied on the Florida Supreme Court's interpretation of Rule 1.420 in Fears v. Lunsford, 314 So.2d 578 (Fla. 1975)). In Fears the court held:
The rule is specific on this point. It states in unusual language, "the action may be dismissed by plaintiff without order of court" by (1) service before trial or (2) stating on the record a notice of dismissal. No action is required by the court under the rule. Hence, a statement by the court that the notice is approved, or a motion to dismiss, if made, is granted, adds nothing to the finality of the dismissal. The only remaining action required by the court contemplated by the rule would be to advise the jury thereof in a jury case.Id. at 579.
Accordingly, the order appealed is REVERSED.
OTT, C.J., and DANAHY, J., concur.