Articles & News


TIPS FOR TRIAL LAWYERS: When must the court enter an order approving a voluntary dismissal?

Under Rule 1.420 (a), Fla.R.Civ.Pro., a party has an absolute right to voluntarily dismiss its case without a court order only in two circumstances:

  1. by serving a notice of voluntary dismissal, either before trial (anytime before a hearing on a motion for summary judgment, or after the motion is denied), or during trial by stating on the record (before retirement of the jury or, in a non-jury case, before submission of the case to the court for a decision) that it is voluntarily dismissing its case, and
  2. by filing a stipulation of dismissal that is signed by all parties who have appeared in the action. [Meyer v. Contemporary Broadcasting Co., 207 So.2d 325 (Fla. 4th DCA 1968); Chrysler Corp. v. Hames, 345 So.2d 813 (Fla.4th DCA 1977)].

Two principle exceptions to the above Rule are: (1) when property has been seized in the action or is in the custody of the court, and (2) where the defendant has filed a counter-claim, or a motion for leave to file a counter-claim. [Ryder System, Inc. v. O’Connor, 369 So.2d 980 (Fla. 4th DCA 1979); Our Gang, Inc. v. Commvest Securities, 608 So.2d 542 (Fla. 4th DCA 1992)] If you did not follow the procedures enunciated in Rule 1.420 (a), (taking into consideration its exceptions) to voluntarily dismiss your case, you will have to obtain a court order to do so. [Rule 1.420 (2) Fla.R.Civ.Pro.]

A word to the wise though – costs will be immediately assessed upon application and a judgment entered thereon against the dismissing party in any action voluntarily dismissed under Rule 1.420 Fla.R.Civ.Pro. [McKelvey v. Kismet, Inc., 430 So.2d 919 (Fla. 3d DCA 1983); Rule 1.420 (d), Fla.R.Civ.Pro.] Significantly, if a statute or contract makes attorney’s fees a part of the costs, they will also be assessed. Paley v. Cocoa Masonry, Inc. 354 So2d 945 (Fla. 2d DCA 1978, Bankers Multiple Life Insurance Company v. Blanton, 352 So.2d 81 (Fla. 4th DCA 1977)]

Costs will be immediately awarded upon voluntary dismissal of the main case, even if a counter-claim remains to be litigated. [McKelvie, id.] Moreover, should the dismissing party refile its action and there has been a judgment for costs entered against it in the dismissed suit, its new action will be stayed pending payment of the cost judgment. [Albertson’s, Inc. v. Neil, 784 So.2d 584 (Fla. 4th DCA 2001); Estate of McGrail v. Rosas, 691 So.2d 50 (Fla. 4th DCA 1997)].

The moral of the story is that when you are facing an award of costs for voluntarily dismissing your suit, try to persuade opposing counsel to enter into a written stipulation to dismiss your case with all parties paying their own attorney’s fees and costs. Otherwise, you might have to explain to your client why the court entered a judgment against it for thousands of dollars after you told your client that the case had been dismissed.

by :
comment : 0
About the Author