Opinion
Nos. 65-99 to 65-101.
January 11, 1966. Rehearing Denied March 1, 1966.
Appeal from the Civil Court of Record, Dade County, James H. Earnest, J.
Wilson Abramson, Richard M. Gale, Miami, for appellant.
George, Ames Ritter, Miami, for appellee.
Before HENDRY, C.J., and TILLMAN PEARSON and CARROLL, JJ.
We have before us three separate appeals which have been consolidated for all appellate purposes. Each case is an appeal by the defendant from a final order pursuant to a voluntary non-suit.
Appellant's position is that inasmuch as the non-suit practice no longer exists in this jurisdiction and the grounds, upon which the non-suit was announced, were not sufficient for granting a voluntary dismissal without prejudice, the final order pursuant to non-suit must be reversed and an order dismissing the causes with prejudice substituted therefor. It is pointed out that, as set forth in Union Trust Company v. Fields, Fla.App. 1965, 176 So.2d 339, a motion for voluntary dismissal by a plaintiff after he has rested and the defendant has moved for a directed verdict is not favorably regarded, and that a strong showing is necessary to warrant a voluntary dismissal at that late stage in the proceedings.
In the causes before us, the defendant moved for a directed verdict at the conclusion of all the evidence. After the court had taken this motion under advisement, the plaintiff, appellee, moved for a non-suit. The court did not exercise its judicial discretion to dismiss the cause with prejudice or to dismiss the cause without prejudice. In Cook v. Lichtblau, Fla.App. 1965, 176 So.2d 523, 534, it was suggested that "* * * erroneously sought nonsuits should not be treated as dismissals with prejudice but as motions for dismissal without prejudice."
In view of the circumstances in this case, we conclude that the trial court's failure to exercise its discretion, by either granting or denying what should have been considered as a motion for voluntary dismissal without prejudice, deprived the plaintiff of the privilege of continuing his suit if he had received an adverse ruling. We therefore reverse the final order pursuant to non-suit and remand the cause to the trial court with directions to enter an order of mistrial. Cf., Union Trust Company v. Fields, Fla.App. 1965, 176 So.2d 339; Cook v. Lichtblau, Fla.App. 1965, 176 So.2d 523; Florida East Coast Railway Co. v. Chapin, Fla.App. 1965, 179 So.2d 107.
Reversed and remanded with directions to declare a mistrial.
ON REHEARING
In his petition for rehearing, the appellant has pointed out that the opinion on this appeal inaccurately stated that the order appealed was entered after a motion for directed verdict at the conclusion of the plaintiff's case. The appellant also points out that the order was entered after the close of all the evidence and after the trial court had taken under advisement defendant's motion for a directed verdict, and that the plaintiff moved for a non-suit. The opinion has been corrected to remedy this misstatement.
The appellant urges that under these conditions the trial court must be regarded as actually exercising its discretion, and that, having exercised that discretion to allow a non-suit (which was in reality a dismissal without prejudice), this Court should hold the order to be an abuse of discretion.
We adhere to our original decision, and assign as an additional ground therefor our opinion that we should not hold the instant order to be an abuse of discretion because we cannot know whether the trial judge in fact exercised his discretion or was acting under a misapprehension as to the applicable law as to non-suits. The period of time during which there was an uncertainty in the practice in this regard was short, and the uncertainty has been fully corrected by Rule 1.35(a) (1), Florida Rules of Civil Procedure, 30 F.S.A. (1965 Revision), which now permits dismissal without prejudice and without order of court at any time before the jury retires.
The petition for rehearing is denied.