In this construction contract case, plaintiff’s counsel stated in open court, before jury selection, that he would voluntarily dismiss the case without prejudice. He stated further that he would file a written dismissal thereafter. The defendants then filed a motion for fees and costs. The plaintiff never filed the written dismissal, but instead filed a motion for relief from the voluntary dismissal. The court denied the motion. The plaintiff appealed. The Third District held that the oral dismissal was ineffective under Rule 1.420(a)(1) because it was not made “during trial.” The court, however, affirmed because “Plaintiff cannot obtain the benefit he sought — a postponement of trial — while failing to file the required document he assured opposing counsel and the court he would file.” The court therefore in essence found that the plaintiff was estopped from obtaining relief from the dismissal.
SALINAS v. ORLANDO MEDINA et al., 34 Fla. L. Wkly D1582a (Fla. 3d DCA August 5, 2009)