Fifth DCA
Regions Bank v. Austin & Laurato, P.A.
5th DCA
4/6/23, Judge Kilbane
Topics: Topics: Attorney’s Fees; Dismissal
A plaintiff appears to have tried to avoid paying fees or costs of losing a civil suit against Regions Bank by voluntarily dismissing the case.
The underlying case involved a prior action for a homeowners’ insurance dispute about a sinkhole. That case resulted in three checks paid by State Farm, one of which was to pay off the plaintiff’s line of credit with Regions Bank. The check was made out to Regions, the plaintiff, and the plaintiff’s law firm (Austin & Laurato).
The law firm refused to endorse the check over to Regions, contending that the funds should go toward paying the contingency fee arrangement between the firm and the plaintiff. A&L filed a complaint for quasi-contract and asserting an equitable charging lien that had priority over Region’s mortgage lien.
The parties both filed summary judgment motions. The trial court ruled in Region’s favor that they were entitled to the proceeds of the check, but the court reserved on interest and costs. Then, for some reason, the trial court ordered the parties to attend non-binding arbitration.
The parties attended, but shortly before the arbitrator issued their decision, the firm filed a notice for a trial de novo and then filed a dismissal of its complaint “in an attempt to deprive Regions of a final judgment granting it entitlement to the check proceeds, interest, and costs.”
Regions filed a motion for relief from the notice of voluntary dismissal under Fla. R. Civ. P. 1.540, asserting that the notice was void because it was filed after adverse summary judgment. The trial court denied the motion, and Regions appealed.
The DCA notes that denial of a Rule 1.540 motion is usually reviewed for abuse of discretion, but “when the underlying judgment is void, the trial court has no discretion; it is obligated to vacate the judgment.”
Rule 1.420(a)(1) only permits a plaintiff to file a notice of dismissal
(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.
Because a summary judgment order was entered in defendant’s favor and the notice of “voluntary dismissal” was filed after—not before—the hearing and it was not signed by the defendant, it was a nullity.
The DCA held that the untimely notice of dismissal was void and that Regions properly sought relief because it was deprived of a final judgment entitling it to the check proceeds, interest, and costs. Reversed and remanded with instructions to grant the motion, strike the notice of the voluntary dismissal, and conduct further proceedings.
https://supremecourt.flcourts.gov/content/download/865370/opinion/220567_DC13_04062023_ 081600_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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