The Week in Torts – Cases from the Week of December 8, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 49
CASES FROM THE WEEK OF DECEMBER 8, 2017
DISMISSAL ON BASIS OF FORUM NON CONVENIENS NOT A JUDGMENT OR RULING ON THE MERTIS IN FAVOR OF DEFENDANT, BUT MERELY A RULING PROVIDING THAT ANOTHER FORUM IS MORE CONVENIENT–NEITHER SECTION 57.041 NOR RULE 1.525 SUPPORTED AWARD OF COSTS TO DEFENDANT.
Magdalena v. Toyota Motor Corp., 42 Fla. L. Weekly D2513 (Fla. 3rd DCA November 29, 2017):
After the defendant Toyota, successfully convinced the trial court to dismiss the case based on forum non conveniens, Toyota moved for prevailing party costs, which the trial judge granted.
The Third District reversed the trial judge’s award, finding that a dismissal on the ground of forum non conveniens is neither a judgment, nor a ruling on the merits of the claims against Toyota. Instead, it is a ruling which merely provides that another forum is more convenient and would best serve the ends of justice. As such, the court concluded that it was error to award costs under the prevailing party statute and rule.
MOTION TO WITHDRAW BY PLAINTIFF’S CO-COUNSEL FILED WITHIN TEN MONTHS OF DISMISSAL, WAS SUFFICIENT RECORD ACTIVITY TO PRECLUDE DISMISSAL FOR FAILURE TO PROSECUTE.
McGrath v. Martin, 42 Fla. L. Weekly D2512 (Fla. 3rd DCA November 29, 2017).
TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN NO MOTION FOR SUMMARY JUDGMENT WAS PENDING.
Levin v. Kleeman, 42 Fla. L. Weekly D2541 (Fla. 5th DCA December 1, 2017):
A woman and her son were involved in contentious litigation over a sizeable amount of money that the mother had loaned to her son, that he allegedly failed to repay.
The mother filed an unsworn motion for summary judgment. After numerous efforts to have the motion heard, the trial court ultimately conducted a hearing and denied it. Both parties continued to file a series of motions, but the mother never corrected the deficiencies in the earlier motion or filed a new one.
Although the mother’s previous motion for summary judgment had been denied, and she had not filed a new motion, a successor judge decided to enter summary judgment in the mother’s favor anyway.
The Fifth District ruled this was error. A trial court cannot grant summary judgment when no motion for summary judgment is pending. The court reluctantly reversed and remanded for the proceedings.