Judges: Robert A. Butterworth Attorney General
Filed Date: 4/15/1994
Status: Precedential
Modified Date: 7/5/2016
Mr. Howard Scharps, Chairman Gainesville-Alachua County Regional Airport Authority 3400 Northeast 39th Avenue, Suite A Gainesville, Florida 32609
Dear Mr. Scharps:
On behalf of the Gainesville-Alachua County Regional Airport Authority, you ask substantially the following question:
Does a voluntary dismissal operate to conclude litigation for purposes of section
In sum:
It would appear inconsistent with the intent of section
Section
This question arises in light of three pending lawsuits against the authority in which a member of the authority has expressed the desire to hold a meeting under section
Under the above factual situation, the dismissal of the suits by the plaintiff who has previously taken a voluntary dismissal in actions based on the same claims operates as an adjudication of the merits and bars further action.1 Thus, the plaintiff could request a copy of the transcript of the strategy or settlement meeting held pursuant to section
Section
Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity's attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met: (a) The entity's attorney shall advise the entity at a public meeting that he desires advice concerning the litigation. (b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. (c) The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter's notes shall be fully transcribed and filed with the entity's clerk within a reasonable time after the meeting. (d) The entity shall give reasonable public notice of the time and date of the attorney-client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending. At the conclusion of the attorney-client session, the meeting shall be reopened, and the person chairing the meeting shall announce the termination of the session. (e) The transcript shall be made part of the public record upon conclusion of the litigation.
Section
A dismissal of a suit is defined as the termination of a case without a trial of any of the issues.2 The general rules governing the termination of an action by dismissal are set forth in the Florida Rules of Civil Procedure. Florida Rule of Civil Procedure 1.420, provides:
(a) Voluntary Dismissal. (1) By Parties. Except in actions in which property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court (i) 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 (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.
Florida courts have determined that a voluntary dismissal of an action without an order of the court operates to end the action and to divest the trial court of jurisdiction.3 The rule applies to the dismissal of an "action" which denotes the entire contro-versy.4 A voluntary dismissal ends an action without prejudice, meaning that the action may be refiled at any time within the applicable statute of limitations. Thus, while the court is deprived of its jurisdiction to enter further orders once a voluntary dismissal is taken, the plaintiff's cause of action remains viable until the appropriate statute of limitations has run and the plaintiff retains control over the continuation of the suit.
In a situation where the plaintiff takes a voluntary dismissal after a strategy or settlement meeting of the governing body and then seeks access to the record of such meeting, claiming the litigation has concluded, such action by the plaintiff might be interpreted by a court as a continuation of the litigation. A party to a judicial proceeding may not subvert the rules of procedure in order to deprive the opposing party of its rights to a fair trial under the law.5
Accordingly, if a public records demand is made for the transcript of a strategy or settlement meeting by a plaintiff who has voluntarily dismissed the action which is the subject of such a meeting, it may be advisable to cite section
This office has consistently read the government in the sunshine law to assure the public's right of access to meetings of public boards or commissions. In order to place local governments and state agencies on equal footing with the other parties in a lawsuit, however, the Legislature has provided a specific exemption from the open meetings requirements. To allow a plaintiff who has voluntarily dismissed a suit to gain access to transcripts of strategy or settlement meetings in order to obtain an advantage in the refiling of a lawsuit would subvert the purpose of the statute.
Accordingly, it is my opinion that to give effect to the purpose of section
Sincerely,
Robert A. Butterworth Attorney General
RAB/tls