25 Fla. L. Weekly Supp. 83a
Online Reference: FLWSUPP 2501NCHAInsurance — Personal injury protection — Provider’s motion for relief from order granting defendant’s motion for final judgment and related motion for sanctions is denied — Filing of notice of voluntary dismissal without leave of court after hearing on motion for summary judgment had been completed did not deprive court of jurisdiction to enter written order granting summary judgment — Plaintiff’s allegations of fraud upon court, made over a year after entry of written final summary judgment, were improper/lacking any evidentiary basis, and not made
GABLES INSURANCE RECOVERY, a/a/o Noemi Chavez, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 12-17732-SP-25 (04). April 12, 2017. Carlos Guzman, Judge. Counsel: Robert Pelier, Law Office of Robert Pelier, Coral Gables, and Aimee Gunnels, Gables Insurance Recovery, Coral Gables, for Plaintiff. Erick Martin and Michael P. Hughes, Progressive PIP House Counsel, Miami, for Defendant.
[Prior Order at 22 Fla. L. Weekly Supp. 1167a]
ORDER ON PLAINTIFF’S VERIFIED MOTION FORRELIEF FROM COURT ORDER ENTERED MAY 5, 2015GRANTING DEFENDANT’S MOTION FOR FINALSUMMARY JUDGMENT AND DEFENDANT’S MOTIONFOR SANCTIONS PURSUANT TO FLA. STAT.§57.105 RELATED TO THE SAME
THIS CAUSE having come on to be heard on Plaintiff’s Verified Motion for Relief from Court Order Entered May 5, 2015 Granting Defendant’s Motion for Final Summary Judgment and Defendant Motion for Sanctions Pursuant to Fla. Stat. §57.105 (filed 6/14/16) [ 22 Fla. L. Weekly Supp. 1167a] related to the same, the Court having heard argument of counsel, and being otherwise advised in the premises, it is hereby,
1) The hearing on Defendant’s Motion for Final Summary Judgment was held on March 3, 2015.
2) The Memorandum of disposition indicating Summary Judgment was granted for the Defendant was recorded on the docket March 3, 2015.
3) On March 25, 2015 subsequent to the hearing on Defendant’s Motion for Summary Judgment Plaintiff filed and served a Voluntary Dismissal without leave of Court.
4) Subsequently on May 5, 2015 this Honorable Court signed a written Order granting Defendant’s Motion for Final Summary Judgment and declaring the voluntary dismissal a legal nullity as it was filed after both the hearing on the matter as well as the Court’s granting summary judgment.
5) Fla. R. Civ. P. 1.420(a)1 clearly indicates that an action may be dismissed by Plaintiff without order of court (i) by serving a notice of dismissal at any time before a hearing on the motion for summary judgment. (emphasis added)
6) Additionally, Stonely v. Moore, 851 So. 2d 905 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1875a] clearly indicates a Plaintiff may not voluntarily dismiss after a summary judgment hearing has occurred.
7) The record evidence before this Court indicates that Defendant served a safe harbor letter with Motion for Sanctions pursuant to Fla. Stat. §57.105 attached advising both of the plain language of Fla. R. Civ. P. 1.420(a)1 and the binding case law of Stonely v. Moore, 851 So. 2d 905 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1875a] on May 16, 2016.
8) On May 20, 2016 Defendant filed and served the Affidavit of Neil V. Singh in opposition to Plaintiff’s Verified Motion for Relief from Court Order Granting Summary Judgment detailing the facts and circumstances surrounding these issues and authenticating emails between Mr. Singh and Mr. Pelier. In these emails Mr. Pelier admits/does not oppose Mr. Singh’s statements of March 17, 2015 indicating Judge Guzman ruled granting Defendant’s Motion for Final Summary Judgment in this case and that Defendant was to submit a proposed order, and in response dated March 24, 2015 indicates “Send me your final version for my review”. Clearly indicating a state of mind showing no opposition to Defendant’s statements.
9) Plaintiff did not take corrective action and the Motion for Sanctions pursuant to Fla. Stat. §57.105 was filed with this Court and served upon Plaintiff’s Counsel and Plaintiff on June 14, 2016.
10) On March 1, 2017 this Honorable Court held a hearing on this matter. At said hearing, Plaintiff presented the cases of Ambory v. Ambory, 442 So. 2d 1087 (Fla. 2DCA 1983) and Pino v. Bank of N.Y., 121 So. 3d 23 (Fla. 2013) [38 Fla. L. Weekly S168a] arguing that a plaintiff should be able to avail itself of the ability to dismiss an action at any time, even post hearing on a motion for summary judgment, since the Court had not entered a written ruling, similar to a trial where the jury has not rendered its verdict, and thus there was no finality, allowing for a voluntary dismissal at any moment.
11) However, the case of Ambory v. Ambory dealt with a voluntary dismissal which was filed after a hearing on a motion to dismiss, not a motion for summary judgment hearing, and the case of Pino itself clearly indicates:
Under its terms, rule 1.420(a)(1) authorizes a plaintiff to take one voluntary dismissal without prejudice, unless “otherwise stated in the notice or stipulation,” by serving “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.” Id. Until either time period delineated in the rule expires, this Court has long construed the plaintiff’s right to take a voluntary dismissal to be “absolute.” Fears v. Lunsford, 314 So.2d 578, 579 (Fla.1975). See Pino v. Bank of N.Y., 121 So. 3d 23 (Fla. 2013) [38 Fla. L. Weekly S168a].
12) In opposition to Plaintiff’s claims, Defendant argued that Plaintiff’s interpretation violates the plain language of Fla. R. Civ. P. 1.420(a)1 and the binding case law of Stonely v. Moore, 851 So. 2d 905 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1875a] which very clearly delineates the fact that a voluntary dismissal filed after a hearing on a motion for summary judgment is a legal nullity allowing the court to enter its written ruling. Additionally, Defendant argued that Plaintiff’s interpretation allows for a party to gamble on a summary judgment hearing, then dismiss without penalty in contradiction to the plain language of the rule. This interpretation is in opposition to the rule, which allows a party to dismiss at any moment prior to conclusion of the trial (which encourages settlement amongst the parties), but specifically indicates a party may not dismiss after a hearing on a motion for summary judgment.
13) In addition to the aforementioned arguments, Plaintiff alleges it is entitled to relief pursuant to Fla. R. Civ. P. 1.540(b) for fraud upon the court, alleging Defendant misinformed the court via correspondence that it had verbally granted summary judgment in order to secure a written order granting summary judgment. Plaintiff however, did not present evidence supporting its claims, other than alleging the hearing transcript from the motion for summary judgment hearing did not end with a verbal grant/denial of summary judgment, but rather concluded with the parties agreeing to submit additional authorities to the court for consideration.
14) In opposition to the above claims/allegations, Defendant presented evidence in the form of the Affidavit of Neil Singh (see paragraph 8).
15) Finally, this Court takes note that Plaintiff’s Counsel waited more than one (1) year after the written entry of Final Summary Judgment to take issue with said summary judgment and make such allegations.
16) This Court finds Plaintiff’s arguments lacking in merit/evidentiary basis, unpersuasive, misplaced, and agrees with Defendant. The instant matter involved a hearing on a motion for summary judgment, once that hearing was complete, Plaintiff could not dismiss this action without leave of court, and therefore did not divest the court of its jurisdiction to enter Order granting final summary judgment. This Court reaffirms its prior ruling that the voluntary dismissal was a legal nullity thereby not requiring a motion to set the same aside prior to entering its written Order granting summary judgment.
17) Additionally, this Honorable Court finds the allegations of a fraud upon the Court to be improper/lacking any evidentiary basis, not made in good faith in that Plaintiff waited more than one (1) year to make such claims, and unfounded.
ORDERED AND ADJUDGED that Plaintiff’s motion is DENIED, and Defendant’s motion is likewise DENIED.
