Freeman v. Mintz, s. 85-1725

• Decision Date: 09 February 1988
• Docket Number: Nos. 85-1725,85-2533 and 86-417,s. 85-1725
• Citation: 523 So.2d 606,13 Fla. L. Weekly 1059
• Court: Florida District Court of Appeals
• Parties: 13 Fla. L. Weekly 1059, 13 Fla. L. Weekly 412 Lewis B. FREEMAN and Eddi Ann Freeman, Appellants, v. Al MINTZ and Coldwell Banker-Klock Company f/k/a Klock Company, Appellees.

Page 606

523 So.2d 606

13 Fla. L. Weekly 1059, 13 Fla. L. Weekly 412

Lewis B. FREEMAN and Eddi Ann Freeman, Appellants, v. Al MINTZ and Coldwell Banker-Klock Company f/k/a Klock Company, Appellees.

Nos. 85-1725, 85-2533 and 86-417.

District Court of Appeal of Florida,

Third District.

Feb. 9, 1988.

On Motion for Rehearing May 3, 1988.

Haddad, Josephs & Jack and Denise V. Powers, Coral Gables, for appellants.

Fowler, White, Burnett, Hurley, Banick & Strickroot and Kathy M. Klock, Miami, for appellee Mintz.

Steel, Hector & Davis and Gerry S. Gibson, Miami, for appellee Coldwell Banker.

Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.

FERGUSON, Judge.

The Freemans purchased a house in Coconut Grove from Al Mintz. Mintz represented to the Freemans that the house, built in the 1920's, had been fully renovated.

After moving into the house the Freemans discovered that it needed extensive repairs. They filed suit against Mintz alleging breach of contract, breach of warranty, fraud, and misrepresentation. The complaint was amended to add the broker, Coldwell Banker, as a defendant to the fraud and misrepresentation count on allegations that Coldwell failed to disclose material latent defects in the house.

This is a consolidated appeal from three orders of the trial court: (1) an order granting Coldwell Bankers's motion for involuntary dismissal, (2) an order striking the Freemans' amended complaint against Mintz and denying the Freemans leave to further amend, and (3) an order granting a default judgment against the Freemans on Mintz's counterclaim for foreclosure.

The plaintiffs' second amended complaint pleaded three counts. Counts I and II were claims for breach of contract and warranty against Mintz and count III was entitled "Fraud--all Defendants". Mintz responded to the second amended complaint with general denials and with a counterclaim seeking to foreclose a purchase money mortgage he had taken back from the Freemans. Coldwell Banker moved to dismiss.

The court dismissed the second amended complaint against Coldwell Banker for failure to state a cause of action for fraud and granted twenty days to amend. Before the twenty-day period expired the plaintiffs filed a motion requesting twenty additional days within which to file an amended complaint, but they failed to set the motion for a hearing. No court order was ever issued granting the extension of time and no amended complaint was filed within the twenty-day extension period. A third amended complaint was eventually filed twenty-nine days after the time permitted by the trial court's order. Coldwell Banker moved for an involuntary dismissal with prejudice. Mintz filed an identical motion.

At the hearing on the motions to dismiss, the trial judge announced that he was granting Coldwell Banker's motion to dismiss with prejudice. He denied Mintz's motion. After that oral ruling counsel for the plaintiffs announced that he was taking a voluntary dismissal as against Coldwell Banker pursuant to Florida Rule of Civil Procedure 1.420(a) and, on that same day, filed a written notice of voluntary dismissal. Subsequently, the trial judge entered a written order of involuntary dismissal in regard to Coldwell.

It is contended here by the Freemans that their act of taking a voluntary dismissal of the fraud claim against Coldwell divested the trial court of jurisdiction to grant Coldwell's motion for involuntary dismissal. In support of the argument that an involuntary dismissal of the claim against Coldwell is erroneous the Freemans rely on Florida Rule of Civil Procedure 1.420(a)(1), which provides that:

[A]n action may be dismissed by plaintiff without order of court (i) 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....

At common law the plaintiff had an absolute right to take a nonsuit, or dismissal without prejudice, at any time prior to the verdict. The policy reasons for this rule were that highly technical filing procedures often forced plaintiffs to take a nonsuit to preserve a meritorious claim and because transportation and communication difficulties often prevented witnesses, parties, and counsel from timely preparing for trial. Note, Plaintiffs' Absolute Right to Voluntary Dismissal: Legitimate Right or Abuse of Judicial Process? 36 U.Fla.L.Rev. 118, 121 (1984).

As the rules of pleading changed and modes of communication and transportation improved, courts, recognizing the unjust advantage given to plaintiffs, began qualifying plaintiffs' right to voluntary dismissal. The majority of jurisdictions have either eliminated or severely limited the right to voluntary dismissal. See Note, Expanded Right to Voluntary Dismissal Upheld, 30 U.Miami L.Rev. 1092, 1094 Notwithstanding the trend, the unqualified right to voluntary dismissal has been reconfirmed in Florida law. In Fears v. Lunsford, 314 So.2d 578, 579 (Fla.1975), the supreme court held that the plaintiffs' right to take a voluntary dismissal was absolute and without the necessity of a court order. In that case the trial court had granted, outside the jury's presence, a directed verdict for the defendant. The court then granted the plaintiffs' request for a voluntary nonsuit. When the plaintiffs subsequently filed suit against the defendant, the trial court dismissed the case with prejudice ruling that suit was barred by the doctrine of res judicata. The district court affirmed. The Supreme Court of Florida held that a literal application of rule 1.420 permits the plaintiffs to take a voluntary dismissal at any time until the judge announces the directed verdict to the jury. Justice Overton, concurring in that decision, disagreed with the rule as written because of the results it produces, but wrote that it was the law in Florida and "[i]f we desire to make a change, we should do so in the rule." 314 So.2d at 580. See also Randle-Eastern Ambulance Serv. v. Vasta, 360 So.2d 68, 69 (Fla.1978) (a voluntary dismissal deprives the trial court of the power to enter an order), clarified by, Miller v. Fortune Ins. Co., 484 So.2d 1221 (Fla.1986); Gonzalez v. Mulreany, 375 So.2d 621 (Fla. 3d DCA 1979) (trial court lacked jurisdiction to enter judgment of directed verdict after plaintiff took voluntary dismissal).

(1976). Federal Rule of Civil Procedure 41, in keeping with the modern trend, restricts the plaintiff's right to take a voluntary dismissal to "anytime before service by the adverse party of an answer or of a motion for summary judgment, whichever occurs first." Fed.R.Civ.P. 41.

When presented with a fact pattern similar to the instant case the Second District Court of Appeal held that when the plaintiff's attorney took a voluntary dismissal, even though the voluntary dismissal was taken after the trial judge orally announced that he was granting an involuntary dismissal, the trial court was divested of jurisdiction to enter its formal order. Ambory v. Ambory, 442 So.2d 1087 (Fla. 2d DCA 1983).

Under rule 1.420, as interpreted by the supreme court in Fears v. Lunsford, the Freemans are correct; the trial court was without jurisdiction to dismiss the case.

The second order appealed is the order striking the Freeman's third amended complaint against Mintz and denying leave to amend. Mintz moved to strike the third amended complaint on grounds that the plaintiffs amended the complaint and their claims against him without requesting or obtaining leave of court. That motion was granted. The plaintiffs contend that the trial judge abused his discretion in striking the third amended complaint against Mintz and denying them leave to amend. We disagree. Under Florida Rule of Civil Procedure 1.190(a), a party is permitted to amend a pleading "[o]nce as a matter of course at any time before a responsive pleading is served." If a responsive pleading has been served a party may amend a pleading only by leave of court or by written consent of the adverse party. Fla.R.Civ.P. 1.190(a). Because the Freemans never obtained leave of court to amend their allegations against Mintz, the court acted properly in striking the amended complaint.

It is well established that a trial court has broad discretion in granting or denying motions to amend pleadings, Feinman v. City of Jacksonville, 356 So.2d 50 (Fla. 1st DCA 1978), and a court may, for good reason, properly deny further leave to amend. Pinakatt v. Mercy...