Wednesday, February 13, 2013

New Opinions


Pino v. Bank of N.Y., 2013 Fla. LEXIS 205 (Fla. February 7, 2013) restated the established rule that the plaintiff’s right unilaterally to take a nonsuit or voluntary dismissal is almost absolute.  See Ramirez, 2-20 Florida Civil Procedure § 20-1.  Here, the court held that when a defendant alleges fraud on the court as a basis for seeking to set aside a plaintiff's voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiff securing affirmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from undoing the improperly obtained relief. But where the plaintiff does not obtain affirmative relief before seeking the dismissal, measures other than reinstating the dismissed action exist to protect against a plaintiff's abuse of the judicial process. Thus, a notice of voluntary dismissal does not divest a trial court of jurisdiction to award sanctions under Fla. Stat. §  57.105, even after a voluntary dismissal is taken.


Ross v. Wells Fargo Bank, 2013 Fla. App. LEXIS 2143 (Fla. 3d DCA Feb. 13, 2013) is another unfortunate example of misusing the term “subject matter jurisdiction,” and then using that to justify allowing a defendant to raise the issue for the first time on appeal.  Granted, when the trial court truly lacks jurisdiction over the subject matter, that issue can be raised at any time.  But here, the court simply may have lacked jurisdiction over the case because it had been previously dismissed for lack of prosecution. 
Commentary:  I tried to shed some light on this matter when I was still on the court in Godfrey v. Reliance Wholesale, Inc., 68 So. 3d 930, 932 (Fla. 3d DCA 2011).  To say that the judge lacked subject matter jurisdiction is the same as saying that circuit judges don’t have jurisdiction over the class of cases to which this case belongs, i.e., foreclosure actions.  That issue was decided almost ninety years ago in Malone v. Meres, 109 So. 677 (Fla.  1926), a case also involving a foreclosure.  See also Cunningham v. Std. Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994).


reversed an order striking plaintiff’s amended complaint, based on its finding that a prior order on a motion to dismiss was a final judgment which precluded the filing of an amended complaint.  The prior order was entitled “Order on Defendant’s Motion to  Dismiss  Plaintiff’s  Complaint,” and read as follows:

The motion is granted.  It appears plaintiff failed to exhaust administrative  remedies,  allegations  in  the  complaint  go beyond those  arguably  presented  in  the  administrative charge, and plaintiff’s allegations are time barred.

The order did not state whether the dismissal was with or without prejudice; did not grant the plaintiff leave to amend; and did not actually dismiss the complaint. 

The court explained that by merely granting the motion to dismiss, the order was not final.  There was no language in the prior order clearly indicating that judicial labor was at an end and there could be no possibility of amendment.


Info. Sys. Assocs. v. Phuture World, Inc., 2013 Fla. App. LEXIS 2265 (Fla. 4th DCA Feb. 13, 2013) quashed an order revoking an attorney’s admission pro haec vice, stating that an alleged conflict of interest asserted by someone not a party to the attorney/client relationship is not a ground for revoking the pro haec vice status of a foreign attorney; and the attorney did not provide representation beyond the order authorizing his pro haec vice status.


Alexopoulos v. Gordon Hargrove & James, P.A., 2013 Fla. App. LEXIS 1843 (Fla. 4th DCA February 6, 2013) reversed a summary judgment based solely on its finding that plaintiff did not have standing to bring her legal malpractice claims. The issue of standing was not sufficiently raised in the motion for summary judgment, and was never raised as an affirmative defense.

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