Union Trust Co. v. Fields
Citation | 176 So.2d 339 |
Decision Date | 18 June 1965 |
Docket Number | No. 5222,5222 |
Parties | UNION TRUST COMPANY, Appellant, v. Edmund FIELDS, Appellee. |
Court | Court of Appeal of Florida (US) |
John T. Allen, Jr., of Mann, Harrison, Mann & Rowe, St. Petersburg, for appellant.
B. J. Masterson, of Masterson, Lloyd & Rogers, St. Petersburg, for appellee.
The defendant in this negligence action appeals a final judgment of nonsuit upon a finding that a plaintiff has the privilege of taking an involuntary nonsuit as a matter of right. Subsequent to this finding of the trial court we determined that a plaintiff is not entitled to take a nonsuit as a matter of right. Cook v. Lichtblau, Fla.App.1965, 176 So.2d 523. Opinion filed May 28, 1965. Since it affirmatively appears that the court's order was based upon a misconception of a controlling principle of law, we reverse and remand the cause. This leaves remaining for our determination only the question of directions for further proceedings.
After presenting his case in chief the plaintiff rested; defendant moved for a directed verdict and the court announced that it would grant defendant's motion; whereupon, plaintiff announced that he took an involuntary nonsuit. Defendant objected to the announced nonsuit and moved for dismissal with prejudice. The court specifically found that plaintiff was entitled to take an involuntary nonsuit as a matter of right. It is apparent therefore that the court did not treat the plaintiff's motion for nonsuit as a motion for voluntary dismissal in accordance with our further holding in the Cook case, supra. By acting on the misconception that plaintiff was entitled to a nonsuit as a matter of right, the court did not exercise any of the judicial discretion vested in it by Fla.R.C.P. 1.35, 30 F.S.A. The record on appeal does not contain the plaintiff's evidence or the testimony excluded by the court's ruling which started the series of events resulting in plaintiff's announcement that he took an involuntary nonsuit. Therefore, we are unable to review the order appealed as one treating plaintiff's motion for nonsuit as a motion for voluntary dismissal. 1 We therefore remand 2 with directions to the trial court to consider plaintiff's motion for nonsuit as a motion for voluntary dismissal and then in the exercise of its sound judicial discretion either (1) dismiss the cause without prejudice and on such terms and conditions as shall be proper, 3 (2) dismiss the action with prejudice on defendant's motion, or (3) in the event he now concludes that both motions should have been denied and that ruling should have been reserved on defendant's motion for directed verdict declare a mistrial. 4
Reversed.
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Dade County v. Peachey, 65-152
...in the individual case. Cf., Continental Aviation Corp. v. Southern Bell T. & T. Co., Fla.App.1965, 173 So.2d 750; Union Trust Company v. Fields, Fla.App.1965, 176 So.2d 339; In Re Estate of Meigs, Fla.App.1965, 177 So.2d 246. The plaintiff-appellee's insistence upon his right to a nonsuit,......
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Sanford v. F. A. Chastain Const., Inc.
...and an order dismissing the causes with prejudice substituted therefor. It is pointed out that, as set forth in Union Trust Company v. Fields, Fla.App.1965, 176 So.2d 339, a motion for voluntary dismissal by a plaintiff after he has rested and the defendant has moved for a directed verdict ......
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Meyer v. Contemporary Broadcasting Co., 1201
...nonsuit or a voluntary dismissal as a matter of right but this was a discretionary matter left to the trial judge. Union Trust Co. v. Fields, Fla.App.1965, 176 So.2d 339; Cook v. Lichtblau, Fla.App.1965, 176 So.2d 523. However, the rule under consideration was substantially amended July 28,......