VOLUNTARY DISMISSALS / FORECLOSURES
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.
http://www.floridasupremecourt.org/decisions/2013/sc11-697.pdf
SUBJECT-MATTER JURISDICTION
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).
DISMISSALS
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.
http://www.4dca.org/opinions/Feb%202013/02-13-13/4D12-167.op.pdf
ADMISSION PRO
HAEC VICE
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.
http://www.4dca.org/opinions/Feb%202013/02-13-13/4D12-3094.op.pdf
STANDING
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.
http://www.4dca.org/opinions/Feb%202013/02-06-13/4D11-4829.op.pdf
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