Third District Court of Appeal

State of Florida 

Opinion filed September 29, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1633

Lower Tribunal No. 19-35499

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Associated Energy Group, LLC,

Appellant,

vs.

Luis Costa and Maria Elena Costa,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig, 

Judge.

Fox Rothschild LLP, and Joseph A. DeMaria and Heather L. Ries

(West Palm Beach), for appellant.

Benitez & Associates, and Leo Benitez and Lizette Benitez, for 

appellees.

Before FERNANDEZ, C.J., and LOGUE and BOKOR, JJ. 

LOGUE, J.
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Associated Energy Group, LLC appeals from a summary judgment 

entered in favor of Luis Costa and Maria Elena Costa, defendants below, 

following the trial court’s application of Florida’s two-dismissal rule. Fla. R. 

Civ. P. 1.420(a)(1). Because the rule is inapplicable to the facts of this case, 

we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Associated Energy Group, a Texas limited liability company, invoiced 

$661,371 in fuel products to Osher Oil Corp. pursuant to a line of credit 

agreement. The Costas, as principals of Osher Oil, executed a Continuing 

and Unconditional Guaranty in favor of Associated Energy Group for the 

dealings. Osher Oil and the Costas refused to pay. So began the litigation.

A. First Florida Action

On August 14, 2018, Associated Energy Group sued Osher Oil and the 

Costas for breach of contract in the Miami-Dade County Circuit Court.1 Osher 

Oil argued that the proper venue for the breach of contract action was Texas. 

The Costas asserted there was a conflict between the venue provision under 

the credit agreement with Osher Oil and the guaranty they had executed. 

One year later, Associated Energy Group filed a Notice of Voluntary 

1 Associated Energy Grp., LLC v. Osher Oil Corp., No. 2018-27624-CA-01

(Fla. 11th Cir. Ct. Aug. 14, 2018).
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Dismissal Without Prejudice pursuant to rule 1.420(a)(1) as to all defendants, 

Osher Oil and the Costas. The action was dismissed, and the case file was 

closed.

B. Texas Action

The same day it dismissed its first Florida action against all defendants, 

Associated Energy Group filed a second action in the District Court of Harris 

County, Texas against Osher Oil and the Costas. Upon learning of the new 

action, counsel for the Costas asserted that the proper venue for breach of 

the guaranty was Florida and claimed they would seek sanctions if they were 

not dismissed. On December 5, 2019, Associated Energy Group filed its 

Notice of Dismissal of Luis Costa and Maria Elena Costa Without Prejudice 

in the Texas action. The dismissal notice stated: “Associated Energy Group, 

LLC dismisses its claims against Luis Costa and Maria Elena Costa without 

prejudice to its right to re-file the same claims.” Relevant here, the Texas 

action was not entirely dismissed: Associated Energy Group’s claims against 

Osher Oil remained pending. Subsequently, Associated Energy Group

obtained a final judgment against Osher Oil for damages. 

C. Second Florida Action

The same day that Associated Energy Group dismissed its claims 

against the Costas in the Texas action, it filed a one-count complaint for 
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breach of the guaranty against the Costas in the Miami-Dade County Circuit 

Court—the instant action. The Costas moved to dismiss the complaint 

stating that the two-dismissal rule barred the second Florida action. They 

asserted that Associated Energy Group’s “prior dismissal of the two actions 

against [them] on the same claim . . . operate as an adjudication on the merits 

as a matter of law.” Associated Energy Group responded that the twodismissal rule was inapplicable because the dismissal of the Costas in the 

Texas action did not constitute a dismissal of the entire action as required by 

rule 1.420(a)(1). The trial court denied the motion to dismiss. The Costas 

answered the complaint and asserted the two-dismissal rule as an 

affirmative defense. They then moved for summary judgment on the same 

basis raised in their motion to dismiss.

The trial court entered summary judgment in favor of the Costas. The 

court found that Associated Energy Group’s claims against the Costas were 

barred as a matter of law pursuant to rule 1.420(a)(1). In so ruling, the court 

reasoned that “the primary focus of the two-dismissal rule is on identity of 

the causes of action,” and that the “causes of action alleged by [Associated 

Energy Group’s] Third Action against [the Costas] are the same as those 

alleged . . . in the First Action and the Second Action, both of which were 

voluntarily dismissed by [Associated Energy Group].”
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ANALYSIS

Our standard of review of a trial court’s interpretation of the rules of 

civil procedure, entailing a pure question of law, is de novo. Aguilo v. 

American Sales and Mgmt. Org. LLC, 300 So. 3d 730, 731 (Fla. 3d DCA 

2020) (citing Koppel v. Ochoa, 243 So. 3d 886, 889 (Fla. 2018)).

Florida’s two-dismissal rule, embedded under rule 1.420(a)(1), 

provides:

Except in actions in which property has been seized or is 

in the custody of the court, an action, a claim, or any part of an 

action or claim may be dismissed by plaintiff without order of 

court (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. 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.

(emphasis added).2 “The provisions of this rule apply to the dismissal of any 

counterclaim, crossclaim, or third-party claim.” Fla. R. Civ. P. 1.420(d).

2 The Eleventh Circuit Court of Appeals has noted that the “primary purpose 

of the ‘two dismissal’ rule is to prevent an unreasonable use of the plaintiff’s 

unilateral right to dismiss an action prior to the filing of the defendant’s 

responsive pleading.” Cunningham v. Whitener, 182 F. App’x 966, 969–70 

(11th Cir. 2006).
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In Dave Hess, Inc. v. Black Angus of Pompano, Inc., 288 So. 2d 286 

(Fla. 4th DCA 1974), the Fourth District refused to apply the two-dismissal

rule in remarkably similar circumstances. There, after a voluntary dismissal

in small claims court, the plaintiff again voluntarily dismissed all counts as to 

certain defendants but left two counts pending as to other defendants. 

Plaintiff then filed an amended complaint against the defendants it had 

previously dismissed. The defendants moved to dismiss under rule 

1.420(a)(1). The Fourth District rejected this argument reasoning:

[T]he two dismissal rule applies only to dismissal of an 

entire action or controversy as to all defendants; it does not apply 

to a dismissal of any claim or cause of action against one or 

more, but less than all, of the defendants named in the complaint.

Therefore, although appellant . . . did file a notice of voluntary 

dismissal, such filing was insufficient to permit the circuit court to 

apply the two dismissal rule to appellant, because that notice did 

not involve all the defendants in the action.

Id. at 287 (internal citations omitted).

Here, Associated Energy Group admits that its voluntary dismissal of 

the first Florida action against all defendants (Osher Oil and the Costas) 

constitutes the first dismissal chargeable against it under rule 1.420(a)(1). 

But the voluntary dismissal of the Costas, without prejudice, in the Texas 

action cannot operate under the two-dismissal rule as a bar to the third suit 

in Florida because Associated Energy Group did not dismiss the entire Texas 
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action against all named defendants—it dismissed only its claims against the 

Costas. Dave Hess, 288 So. 2d at 287. 

Reversed and remanded.