Lauda v. H. F. Mason Equipment Corp., 407 So. 2d 392 (1981)

ON MOTION TO DISMISS

DANIEL S. PEARSON, Judge.

Lauda brought a six-count complaint against H. F. Mason Equipment Corporation (Mason) and Harold Howell (Howell). The trial court entered a final summary judgment in favor of the defendants as to all counts except Count V. Lauda filed a timely appeal and then voluntarily dismissed Count Y in the trial court. Mason and Howell moved to dismiss Lauda’s appeal on the ground that Counts I through IV1 did not allege causes of action distinct and separate from Count V and therefore are not appealable under Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).2

We agree with the defendants that the claims stated in Counts I through V substantially involve the same transaction and are legally interrelated.3 Therefore, were Count V still pending in the trial court, we would unhesitatingly grant the defendant Mason’s motion to dismiss.4 S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974); Fischer v. Trafalgar Towers Association # 2, Inc., 372 So.2d 528 (Fla. 4th DCA 1979); Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975). But Count Y has been voluntarily dismissed by the plaintiff, and there would appear to be no impediment to our reviewing the propriety of the summary judgments unless, as the defendants suggest, the voluntary dismissal of Count V is ineffective to give us jurisdiction of this appeal.

It is true that when Lauda filed his notice of appeal, the summary judgments lacked the requisite finality, because *394an interrelated cause of action pended in the trial court. S.L.T. Warehouse Company v. Webb, supra. That fact, however, did not prevent jurisdiction from vesting when the impediment was removed. If, as is the case, a notice of appeal filed before judgment is rendered is sufficient to vest jurisdiction in the appellate court at the time of rendition, Williams v. State, 324 So.2d 74 (Fla.1975), and jurisdiction of an appeal from a non-final order becomes vested upon the later entry of a final order, Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Barnes v. Boss, 386 So.2d 812 (Fla. 3d DCA 1980), we see no reason why our initially inchoate jurisdiction did not become choate at the time the plaintiff voluntarily dismissed the interrelated count pending in the trial court.5

A voluntary dismissal under Florida Rule of Civil Procedure 1.420(a)(1) is not, as the defendants suggest, an inconsequential or ephemeral act.6 If Lauda’s voluntary dismissal was effective, there is no interrelated claim remaining in the trial court, and Mendez is no bar to our proceeding with the appeal of these otherwise final judgments. Neither would Lauda’s institution of a new suit on the claim contained in Count V divest us of jurisdiction,7 see Clarke v. Knight, 84 Fla. 485, 94 So. 671 (1922), and, a fortiori, the spectre of that occurring would have no effect on the appeal.

But Lauda’s problem, as we have intimated, is not the effect of his voluntary dismissal of Count V, but its effectiveness. Florida Rule of Civil Procedure 1.420(a)(1) provides, in pertinent part:

“. .. an action may be dismissed by plaintiff without order of court (i) by serving ... a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if such motion is denied, before retirement of the jury in a case tried before a jury or before submission of a non-jury case to the court for decision ...” (emphasis supplied).

The rule only permits the dismissal of an action. There can be no dismissal without order of court of less than all the causes contained in the action. Deseret Ranches of Florida, Inc. v. Bowman, 340 So.2d 1232 (Fla. 4th DCA 1976).8 See Exx*395on Corporation v. Maryland Casualty Company, 599 F.2d 659 (5th Cir. 1979); Smith, Kline & French Laboratories v. A. H. Robins Company, 61 F.R.D. 24 (E.D.Pa.1973).9 Compare Fla.R.Civ.P. 1.420(b) (“Any party may move for a dismissal of an action or of any claim .... ”). In the present case, the voluntary dismissal of the single claim remaining in the trial court did not remove the defendants from the lawsuit, since Lau-da’s appeal is still pending. The plaintiff’s “action” is not dismissed by the dismissal of one claim in the trial court when other claims contained in the action are still alive, whether well or not, in the appellate court.10 Exxon Corporation v. Maryland Casualty Company, supra.

We conclude, therefore, that Lauda’s voluntary dismissal of Count V was a nullity and was ineffective to terminate the action in the trial court. Count V still pends in the trial court. Deseret Ranches of Florida, Inc. v. Bowman, supra; Exxon Corporation v. Maryland, supra. The defendant Mason’s motion to dismiss Lauda’s appeal of Counts I through IV is granted; the defendant Howell’s motion to dismiss Lauda’s appeal of Counts I through IV is denied.

. Count I alleged a breach of contract in that Lauda was not paid commissions for his efforts on Mason’s behalf. Count II alleged that Lau-da was not. paid for the services he performed under his oral employment agreement with Mason. Count III asked for punitive damages because of Mason’s wrongful refusal to pay Lauda for his efforts. Count IV alleged that more money should have been contributed to the pension fund for Lauda’s account as an emolument of the compensation due him under Counts I and II. Count V alleged that Mason owed Lauda money under the employment contract and demanded an accounting of the territory, sales and money due Lauda. In essence, all five counts involved a breach of a single employment agreement, the difference between the counts lying in the relief sought. See North Indialantic Homeowners Association, Inc. v. Bogue, 390 So.2d 74 (Fla. 5th DCA 1980); Kingsland v. National Advertising Company, 384 So.2d 701 (Fla. 5th DCA 1980); Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975).

. While a voluntary dismissal is without prejudice to the bringing of a new action, it precludes the plaintiff from reviving the original action. Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978). A plaintiff who voluntarily dismisses an action is liable for costs incurred by the defendant and cannot proceed a second time until the costs have been paid, Fla.R.Civ.P. 1.420(d); Stein v. Bayfront Medical Center, Inc., 287 So.2d 401 (Fla. 2d DCA 1974); see Randle-Eastern Ambulance Service, Inc. v. Vasta, supra; is faced with the prospect that a second voluntary dismissal will constitute an adjudication on the merits, Fla.R. Civ.P. 1.420(a)(1); Tinsley v. McDonald, 378 So.2d 816 (Fla. 3d DCA 1980); and bears the risk that the statute of limitations may bar the new action, Randle-Eastern Ambulance Service, Inc. v. Vasta, supra.

. In Fears v. Lunsford, 314 So.2d 578 (Fla.1975), the Florida Supreme Court held that a voluntary dismissal could be entered even after the trial court had announced its intention to grant a directed verdict. In fact, the voluntary dismissal under discussion was not as to the entire action, but rather as to one of two claims in the action. See Fears v. Lunsford, 295 So.2d 323 (Fla. 1st DCA 1974). Since no regard was paid to this fact in either the opinion of the court of appeal or the Supreme Court, we can only conclude that its importance was not made an issue by the parties and was over*395looked by the courts. See Note, Voluntary Dismissal — Plaintiffs Right to Take Voluntary Dismissal is Absolute; or Plaintiff Gets a Second Chance (hereafter, Voluntary Dismissal), 4 Fla.St.L.Rev. 379 (1976), pointing out that the Fears decisions completely overlooked the Committee Notes to Florida Rule of Civil Procedure 1.420, which provided “subdivision (a) applies to the entire action and does not authorize dismissal of some, but not all, parties or claims.” 4 Fla.StL.Rev. at 383 n. 30. The opinion in Deseret Ranches of Florida, Inc. v. Bowman, supra, makes no mention of Fears, and we share the Fourth District’s apparent view that Fears is not authority for the proposition that less than the entire action can be dismissed under Florida Rule of Civil Procedure 1.420(a).

. Were we deciding the present motion to dismiss under Federal Rule of Civil Procedure 41, which, unlike our Florida Rule, provides that the right to unilaterally dismiss ends when an answer or motion for summary judgment is served, Exxon Corporation v. Maryland Casualty Company, supra, we would alternatively hold that Lauda’s voluntary dismissal came too late to be effective. This “bright-line” approach of the Federal Rule recognizes that once a defendant has been actively engaged in the defense of a suit to the point of moving for summary judgment, a plaintiff will not be permitted to unilaterally terminate the suit to the defendant’s prejudice. Under the Federal Rule, neither the scope of the motion for summary judgment nor the outcome is meaningful. The more liberal, see Fears v. Lunsford, 314 So.2d 578 (Fla.1975), but maligned Florida Rule, see Note, Voluntary Dismissal, supra; Note, Expanded Right to Voluntary Dismissal Upheld, 30 U.Miami L.Rev. 1092 (1976); M. Massey and M. Weston, Seventh Survey of Florida Law; Civil Procedure, 20 U.Miami L.Rev. 594 (1966); Fears v. Lunsford, supra (Overton, J., concurring), would likely allow Lauda to voluntarily dismiss at the late stage, had such dismissal been of the entire action.

Lauda v. H. F. Mason Equipment Corp. 407 So. 2d 392

Joseph M. LAUDA, Appellant, v. H. F. MASON EQUIPMENT CORP., a Florida corporation, and Harold A Howell, Appellees.

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