25 Fla. L. Weekly Supp. 191a
Online Reference: FLWSUPP 2502HAYEInsurance — Jurisdiction — Plaintiff’s notice of voluntary dismissal has deprived court of jurisdiction to entertain plaintiff’s subsequently-filed motions for rehearing — Where plaintiff’s notice of voluntary dismissal was not received by court clerk until six minutes after commencement of hearing on insurer’s motion for summary judgment, court had jurisdiction to proceed with hearing and render rulings finding motion for summary judgment moot in light of voluntary dismissal and granting insurer’s ore tenus motion for sanctions
INSURANCE RESOLUTION SERVICES, as assignee for Carmen Hayes, Plaintiff/Assignor, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 15-CC-027006. February 23, 2017. Joelle Ann Ober, Judge. Counsel: Xavier J. Jackman, for Plaintiff. Stephen B. Farkas, Dutton Law Group, P.A., Tampa, for Defendant.AMENDED ORDER ON PLAINTIFF’SMOTIONS FOR REHEARING[Original Opinion at 24 Fla. L. Weekly Supp. 580a]
THIS CAUSE having come before the Court, upon the Plaintiff’s Motion for Rehearing on Plaintiff’s Motion to Strike Affirmative Defenses and Motion to Determine Sufficiency of Request for Admissions Objections, and Plaintiff’s Motion for Rehearing on Defendant’s Motion for Summary Judgment (hereinafter collectively called Plaintiff’s Motions for Rehearing) and the Court having been duly advised on the premises at a hearing on January 18, 2017, with attendance by counsel of record for both parties, It is HEREBY ORDERED AND ADJUDGED as follows:
Factual and Procedural Background
As a preliminary matter, on November 17, 2016 the Court issued Directives For Hearing Scheduled For January 18, 2017 wherein the Court requested that the Parties present initial arguments relative to the Court’s jurisdiction to consider Plaintiff’s Motions for Rehearing.
On September 14, 2016 the Court heard Plaintiff’s Motion to Strike Affirmative Defenses and Motion to Determine Sufficiency of Request for Admissions Objections. Shortly before the 10:30 hearing on September 14, 2016, Plaintiff filed a Notice of Withdrawal (hereinafter NOW) of its Motions. However, the NOW had not been received by or reviewed or filed by the Hillsborough Clerk by the time the hearing commenced. The Court had no prior knowledge of the NOW until Defendant’s counsel advised the Court at the hearing. Despite being cautioned by Defense Counsel to appear for the hearing due to the late filing, Counsel for the Plaintiff did not contact the Judge or her assistant and also did not show up at the 10:30 hearing. Defendant’s Counsel was present at the hearing and advised the Court that he told Plaintiff’s Counsel that he would nonetheless be at the hearing irrespective of having received Plaintiff’s NOW nearly within an hour of the 10:30 hearing.
On September 15, 2016, the Court issued an Order on Plaintiff’s Motion to Strike Affirmative Defenses and Plaintiff’s Motion to Determine Sufficiency of Request for Admissions Objections and Defendant’s Ore Tenus Motion for Sanctions (hereinafter called the 9/15/16 Order) [24 Fla. L. Weekly Supp. 580a]. The substance of the September 15, 2016 Order consisted of a denial of Plaintiff’s Motions and a granting of sanctions in the amount of $1,000.00 based on Plaintiff counsel’s untimely withdrawal of its Motions that were called up for hearing on September 14, 2016. The Court’s award of sanctions was done pursuant to its inherent authority under Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002) [27 Fla. L. Weekly S357b]. In its eventual Order of Sanctions entered by the Court on September 15, 2016, the Court noted that there was an upcoming hearing in just a few days on September 19, 2016 on Defendant’s Motion for Summary Judgment and expected that hearing to go forward. The September 15, 2016 Order was electronically filed and served upon counsel for both parties on September 15, 2016 at or about 3:35pm.
The hearing on Defendant’s Motion for Summary Judgment was scheduled for 10:30 on September 19, 2016. Plaintiff filed its Notice of Voluntary Dismissal, with ePortal system at exactly 9:08am. The Plaintiff’s counsel did not contact the Judge or the Judge’s assistant regarding the Notice of Dismissal. At the time of the 10:30 hearing, the Notice of Voluntary Dismissal had not yet been received by the Hillsborough Clerk and uploaded to the docket. The Clerk received the Notice of Voluntary Dismissal at 10:36am on September 19, 2016; which was after the hearing commenced. After reviewing the Notice of Dismissal, the Clerk uploaded the Notice of Withdrawal to the docket at approximately 11:22 a.m. Counsel for the Plaintiff did not show up at the hearing on September 19; however Counsel for the Defendant was physically present.
On September 21, 2016, the Court issued an Order on Defendant’s Motion for Summary Judgment and Defendant’s Ore Tenus Motion for Sanctions (hereinafter called the 9/21/16 Order). The 9/21/16 Order held that Defendant’s Motion for Summary Judgment was moot given that Plaintiff’s filed a Notice of Voluntary Dismissal and granted Defendant’s Ore Tenus Motion for Sanctions pursuant to its inherent authority under Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002) [27 Fla. L. Weekly S357b].
On September 23, 2016, Plaintiff filed its Motions for Rehearing with accompanied Memorandums of Law. Plaintiff set those Motions for hearing by filing a Notice of Hearing on September 26, 2016, with the hearing scheduled for January 18, 2017.
Ruling on the Issue of Jurisdiction
As previously indicated, the Court asked both Parties to present initial argument on whether or not the Court had jurisdiction to hear Plaintiff’s Motions for Rehearing.
Having heard the arguments from Counsels, the Court is of the opinion that it does not have jurisdiction to hear Plaintiff’s Motions for Rehearing by virtue of Plaintiff’s Notice of Voluntary Dismissal which was filed on September 19, 2016. The Court is also of the opinion that it did have jurisdiction to issue its rulings contained within the 9/15/16 Order and the 9/19/16 Order. Finally, the Court retains jurisdictions on the issue of sanctions. See Pino, v. Bank of New York, 121 So. 3d 23 (Fla. 2013) [38 Fla. L. Weekly S168a].
With respect to the Court’s actions taken at the September 19, 2016 hearing and giving rise to the 9/21/16 Order, the Court had jurisdiction to enter its rulings because at the time of the hearing, Plaintiff’s Notice of Voluntary Dismissal had not been timely received by the Hillsborough Clerk and the Court or Judge prior to the hearing. The Court recognizes the absolute right of the Plaintiff to voluntarily dismiss its case. Pino, v. Bank of New York, 121 So. 3d 23 (Fla. 2013) [38 Fla. L. Weekly S168a]; Kelly, v. Colston, 977 So. 2d 692 (Fla. 1st DCA 2008) [35 Fla. L. Weekly D824c]; Marine Contractors, Inc., v. Armco, Inc., 452 So. 2d 77 (Fla. 2d DCA 1984); and Fears v. Lunsford, 314 So. 2d 578 (Fla. 1975). However, that right is not without time limitations. Fla. R. Civ. P. 1.420 provides, in-part, as follows:
. . .a claim, or any part of an action or claim may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, 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 for decision, or (B) by filing a stipulation of dismissal signed by all current parties to the action.
In this case, Plaintiff’s Notice of Voluntary Dismissal was not initially received by the Clerk until 10:36, which was six (6) minutes after the hearing commenced on Defendant’s Motion for Summary Judgment. The dismissal was untimely and the Court retained jurisdiction to proceed with the hearing on September 19, 2016 and render its rulings. See Stonely, v. Moore, 851 So. 2d 905 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1875a] (Holding that plaintiff could not voluntarily dismiss after hearing on summary judgment hearing. Plaintiff could not dismiss action by filing a notice, dismissal could be accomplished only stipulation of the parties or by order of the court).
Finally, with respect to the amount of sanctions issued in its prior orders, the Court retains jurisdiction to entertain a motion for rehearing on the amount of sanctions. The Court advised the Plaintiff that the Court would have jurisdiction to hear a motion on the amount of sanctions, but not the actual award of sanctions itself.Ruling on Plaintiff’s Motions for Rehearing
With respect to Plaintiff’s Motion for Rehearing on Plaintiff’s Motion to Strike Affirmative Defenses and Motion to Determine Sufficiency of Request for Admissions Objections, the Motion is DENIED for lack of jurisdiction.
With respect to Plaintiff’s Motion for Rehearing on Defendant’s Motion for Summary Judgment, the Motion is DENIED for lack of jurisdiction.
