Browd v. Everclear Photocopy, Inc., s. 4-86-2904

• Citation: 13 Fla. L. Weekly 2514,536 So.2d 1083
• Decision Date: 16 November 1988
• Docket Number: 87-1549,Nos. 4-86-2904,s. 4-86-2904
• Court: Court of Appeal of Florida (US)
• Parties: 13 Fla. L. Weekly 2514 Rudolph BROWD, Appellant, v. EVERCLEAR PHOTOCOPY, INC., and Capital Associates, Inc., Appellees.

Page 1083

536 So.2d 1083

13 Fla. L. Weekly 2514

Rudolph BROWD, Appellant, v. EVERCLEAR PHOTOCOPY, INC., and Capital Associates, Inc., Appellees.

Nos. 4-86-2904, 87-1549.

District Court of Appeal of Florida,

Fourth District.

Nov. 16, 1988.

Rudolph Browd of Rudolph Browd, P.A., Miami, pro se appellant.

Jack Warren of Perlman & Perlow, Hallendale, for appellee-Capital Associates, Inc.

STONE, Judge.

The appellant, third party plaintiff, asserts that it was error to include language in the final judgment that referred to a portion of the third party claim which had previously been dropped. Appellant is entitled to review by having timely filed this appeal from the final judgment.

Appellant's claim included one count of fraud and one count of breach of contract. Included within the fraud claim was the allegation that appellee's conduct violated the Florida Deceptive and Unfair Trade Practices Act. At the conclusion of appellant's case, the following colloquy occurred:

MR. SHENKMAN: Well, Your Honor, I'm going to elect remedies right now. You might as well confirm the--I may have been premature. I want to take it one at a time. Let me take them all and then go through them.

THE COURT: Okay.

MR. SHENKMAN: I'm going to elect now to travel on Count I on the common law fraud, and I'm going also to elect on Count II to travel on breach of contract. I'm going to not travel on the Deceptive Trade Practice Act, which was merely a jurisdictional allegation raised in the Complaint.

MR. PERLMAN: Is that--

MR. SHENKMAN: Let me finish.

MR. PERLMAN: Is that a voluntary dismissal?

THE COURT: It's an election of remedies. You have a right to demand an election of remedies. He's voluntarily doing it.

MR. PERLMAN: I'm sorry. Go ahead.

Neither the trial court nor opposing counsel questioned the action of the appellant in dropping the specified portion of the claim, and no objection was raised. The court went on to consider the amendment of the pleadings to conform to the proof on other issues.

Only the issues of fraud and breach of contract were submitted to the jury. There is no appeal from the final judgment provision that the third party defendant go hence without day on the claims for breach of contract and fraud in accordance with the verdict. However, appellant asserts that the court erred by including language in the final judgment that the third party defendant "go hence without day on said Third Party Complaint for violation of the Florida Deceptive and Unfair Trade Practices Act." The appellant contends that this constitutes a judgment on issues which were dropped without objection and not submitted to the trier of fact.

Neither appellant nor the court considered the asserted election of remedies to be an attempt at dismissal. Clearly a plaintiff may not voluntarily dismiss only a portion of a claim. See, e.g., Deseret Ranches of Florida, Inc. v. Bowman, 340 So.2d 1232 (Fla. 4th DCA 1976); Marine...