                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                          IN THE DISTRICT COURT OF APPEAL

                                          OF FLORIDA

                                          SECOND DISTRICT



H. RAY BADEN,                             )
                                          )
              Petitioner,                 )
                                          )
v.                                        )         Case No. 2D18-1726
                                          )
STEVEN CHRISTOPHER BADEN,                 )
individually and as cotrustee             )
of the Baden Irrevocable Trust            )
2012; VIRGINIA BADEN, individually        )
and as cotrustee of the Baden             )
Irrevocable Trust 2012;                   )
JOANNA BADEN,                             )
individually and as cotrustee of the      )
Baden Irrevocable Trust 2012;             )
ANNE-MARIE GROOMS; CORY RAY               )
BADEN; ELIZABETH BADEN                    )
KNOWLES;                                  )
JAMES ALBERT KNOWLES;                     )
MATTHEW BADEN RUGGERIO and                )
SARAY, INC., a Florida Corporation,       )
                                          )
              Respondents.                )
                                          )

Opinion filed November 14, 2018.

Petition for Writ of Prohibition to the
Circuit Court for Manatee County;
Gilbert A. Smith, Jr., Judge.

Gregory J. Porges and Mary R. Hawk of
Porges, Hamlin, Knowles & Hawk, P.A.,
Bradenton, for Petitioner.
Heather A. Degrave of Walters, Levine
& Lozano, Tampa, for Respondents
Virginia and Joanna Baden.

No appearance for remaining
Respondents.



BADALAMENTI, Judge.

              H. Ray Baden seeks a writ of prohibition to prevent the trial court from

further acting without jurisdiction in a lawsuit he filed involving the Baden Irrevocable

Trust-2012 (the Trust), an irrevocable trust he settled with his now deceased wife. The

trial court struck as a nullity his notice of voluntary dismissal filed pursuant to Florida

Rule of Civil Procedure 1.420(a)(1). We grant the petition and quash the trial court's

order striking his notice of voluntary dismissal because Mr. Baden's filing of the notice of

voluntary dismissal divested the trial court of jurisdiction to issue orders or otherwise

proceed with the underlying case initiated by Mr. Baden.

              Mr. Baden and his late wife were settlors of the Trust. Under the terms of

the original Trust, each of their three adult children was a thirty percent beneficiary and

cotrustee. Mr. Baden's grandchildren were also beneficiaries, making up the remaining

ten percent. Since the establishment of the Trust, two of Mr. Baden's children ("the

daughters"), respondents here, have been disputing with Mr. Baden and their brother

over the handling of the Trust's assets.

              Two years after settling the Trust, Mr. Baden filed a seven-count amended

complaint. All counts relating to the Trust in Mr. Baden's operative complaint were

resolved by the parties by a stipulated agreement reached in late 2014. The remaining

three counts were unrelated to the Trust. Those remaining counts alleged that each of


                                             -2-
Mr. Baden's three children had neglected to repay him for various monies he had

loaned to them.

              As part of the parties' stipulated agreement to resolve Mr. Baden's Trust-

related claims, Mr. Baden's three children agreed to be replaced by a successor trustee.

That successor trustee has since been replaced by a second successor trustee. In all

events, on December 12, 2014, the trial court accepted the parties' stipulation in its

entirety and rendered an order titled "Partial Final Judgment for Judicial Modification of

the Baden Irrevocable Trust-2012." The trial court concluded the partial final judgment

with this statement: "The [c]ourt shall retain continuing jurisdiction to supervise the

[Trust] pursuant to [section] 736.0201[, Florida Statutes, 2017]." The only counts

remaining from Mr. Baden's operative complaint were those related to loans his three

children allegedly failed to repay him.

              But this stipulation disposing of all Trust-related counts in Mr. Baden's

operative complaint did not put a stop to the Trust-related litigation. Rather than

initiating a new case in the trial court, the successor trustee filed several motions in the

underlying case initiated by Mr. Baden. Since the establishment of the 2012 Trust, the

assets have steadily depleted. Based on the limited record before us, the Trust has

cash assets of somewhere between $269,000 and $400,000, all of which were

deposited into a bank account by the second successor trustee. Most recently, the

daughters have urged the second successor trustee to bring an action against Mr.

Baden—again, within the still-open case he initiated—concerning certain intellectual

property of which the status as a trust asset is disputed by the parties. But the second

successor trustee has been reluctant to do so. Consequently, the daughters instead




                                            -3-
asked the trial court to order the second successor trustee to do something the second

successor trustee already advised them he would not do.

               In what seems to have been an attempt to extricate himself from further

litigation in the case he initiated and is currently before us, Mr. Baden filed a notice of

voluntary dismissal of the operative complaint's remaining three counts (for the debts

his three children had not yet repaid him) pursuant to Florida Rule of Civil Procedure

1.420(a)(1). But his attempt to voluntarily dismiss what was left in the case he initiated

was to no avail. Specifically, the trial court entered a sua sponte order rejecting Mr.

Baden's notice of voluntary dismissal, ruling that it was a "legal nullity." In rejecting Mr.

Baden's notice of voluntarily dismissal, the trial court first noted that it had retained

jurisdiction pursuant to section 736.0201 to supervise the Trust in the partial final

judgment it entered on December 12, 2014, where the parties agreed to dismiss all of

the Trust-related counts set forth in Mr. Baden's operative complaint. The trial court

further ruled that it maintained jurisdiction over the Trust pursuant to Florida Rule of Civil

Procedure 1.420(a)(1) because the second successor trustee of the Trust is "under [its]

direction, supervision and control," and the funds deposited by the second successor

trustee in a bank account are therefore "in the custody of the Court." Mr. Baden's

petition for writ of prohibition followed.

               We start with a determination of our jurisdiction in this original proceeding.

"Prohibition is an extraordinary writ by which a superior court may prevent an inferior

court or tribunal, over which it has appellate and supervisory jurisdiction, from acting

outside its jurisdiction." Mandico v. Taos Constr., Inc., 605 So. 2d 850, 853 (Fla. 1992).

As explained by the Fourth District, prohibition is the appropriate vehicle for challenging,




                                             -4-
as was done here, the trial court's jurisdiction to continue to exercise jurisdiction over a

case after the plaintiff has filed a notice of voluntary dismissal pursuant to rule

1.420(a)(1):

               [T]he issue is whether the trial judge, after the voluntary
               dismissal in this case, still has the power to preside over this
               particular dispute between the parties. . . . [T]he word
               "jurisdiction" ordinarily refers to "subject matter" or "personal"
               jurisdiction, but there is a third meaning ("case" jurisdiction)
               which involves the power of the court over a particular case
               that is within its subject matter jurisdiction. "Case"
               jurisdiction is involved here because the trial court clearly
               has jurisdiction over the subject matter. A writ of prohibition
               is the proper claim for relief in this case.

Tobkin v. State, 777 So. 2d 1160, 1163 (Fla. 4th DCA 2001) (citation omitted).1

               Having established our prohibition jurisdiction, we now turn to the

applicability of the Florida Rules of Civil Procedure in judicial proceedings concerning

trusts. Subject to exceptions not relevant here, "judicial proceedings concerning trusts"

are governed by the Florida Rules of Civil Procedure. § 736.0201(1).2 Florida Rule of

Civil Procedure 1.420(a)(1) authorizes a plaintiff to voluntarily dismiss his action or claim

without order of the court at any time before a hearing on motion for summary judgment

"[e]xcept in actions in which property has been seized or is in the custody of the court"

as follows:


               1Certiorari has also been used in the context of the trial court's rejection of
a voluntary dismissal filed pursuant to rule 1.420(a)(1). See Sun First Nat'l Bank of
Delray Beach v. Green Crane & Concrete Servs., Inc., 371 So. 2d 492 (Fla. 4th DCA
1979) (using certiorari to quash an order reinstating a lawsuit after the plaintiffs had filed
a notice of voluntary dismissal pursuant to rule 1.420(a)(1)). Because we are acting to
prevent further action by the trial court rather than to correct action taken by the court,
see English v. McCrary, 348 So. 2d 293, 296–97 (Fla. 1977), we decide this case in
prohibition, as set forth in Mr. Baden's petition.
               2Chapter   736, Florida Statutes, is the Florida Trust Code. § 736.0101.


                                             -5-
              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 . . . .

(Emphasis added.)

              Our supreme court has determined that the effect of a plaintiff's notice of

voluntary dismissal "under rule 1.420(a) is jurisdictional," Pino v. Bank of N.Y., 121 So.

3d 23, 32 (Fla. 2013), and that the right to dismiss is "almost absolute," Tobkin, 777 So.

2d at 1163. The Pino court reasoned that a "voluntary dismissal serves to terminate the

litigation, to instantaneously divest the court of its jurisdiction to enter or entertain further

orders that would otherwise dispose of the case on the merits, and to preclude revival of

the original action." 121 So. 3d at 32. Thus, if we determine that the Florida Rules of

Civil Procedure apply here, we would next need to decide whether the trial court erred

by rejecting Mr. Baden's notice of voluntary dismissal pursuant to Florida Rule of Civil

Procedure 1.420(a)(1). In their reply to Mr. Baden's petition, the daughters defend the

trial court's reasoning and argue that they can defeat Mr. Baden's "almost absolute"

ability to dismiss his own lawsuit for multiple reasons.

              We construe the language of a statute or rule in accord with its plain and

ordinary meaning. See Brown v. State, 715 So. 2d 241, 243 (Fla. 1998) ("Our courts

have long recognized that the rules of construction applicable to statutes also apply to

the construction of rules. Thus, when the language to be construed is unambiguous, it

must be accorded its plain and ordinary meaning." (citations omitted)). "Legal text

'should be interpreted to give effect to every clause in it, and to accord meaning and


                                              -6-
harmony to all of its parts.' " Boatright v. Philip Morris USA Inc., 218 So. 3d 962, 967

(Fla. 2d DCA 2017) (quoting Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914–

15 (Fla. 2001)). If a "statutory provision appears to have a clear meaning in isolation,

'but when given that meaning is inconsistent with other parts of the same statute or

others in pari materia, the [c]ourt will examine the entire act and those in pari materia in

order to ascertain the overall legislative intent.' " Id. (alteration in original) (quoting Fla.

State Racing Comm'n v. McLaughlin, 102 So. 2d 574, 575–76 (Fla. 1958)). Indeed,

"[w]henever possible, we must avoid construing legal text as 'mere surplusage.' " Id.

(quoting Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003)).

               Against this backdrop, we first address the daughters' argument that

section 736.0201 affords the trial court discretion to maintain ongoing jurisdiction of the

action their father brought and attempted to voluntarily dismiss.

               The plain and unambiguous language of section 736.0201(1) mandates

that, with three exceptions not relevant here, judicial proceedings concerning trusts shall

be governed by Florida Rules of Civil Procedure as follows: "Except as provided in

subsections (5) and (6) and s. 736.0206, judicial proceedings concerning trusts shall be

commenced by filing a complaint and shall be governed by the Florida Rules of Civil

Procedure." § 736.0201(1) (emphasis added). Thus, the legislature has set forth in no

uncertain terms that, absent the exceptions found in subsections (5) and (6) and section

736.0206, the judicial proceedings shall be bound by the Florida Rules of Civil

Procedure.

               The trial court, however, set forth an additional exception, separate from

those enumerated by the legislature, to the mandatory application of the Florida Rules




                                              -7-
of Civil Procedure pursuant to section 736.0201. That is, the trial court ruled that it

maintained jurisdiction over Mr. Baden's operative complaint pursuant to subsection

736.0201(3), which states that "[a] trust is not subject to continuing judicial supervision

unless ordered by the court." (Emphasis added.) Relying on that provision, the trial

court reasoned that Mr. Baden's notice of voluntarily dismissal of the operative

complaint was a nullity because it had retained jurisdiction over the trust in its

December 2014 partial final judgment resolving the trust-related counts in Mr. Baden's

operative complaint. We reject the notion that subsection (3) somehow renders

inapplicable the legislature's mandate that the Florida Rules of Civil Procedure "shall"

apply in this context. The exceptions, set forth by the legislature in subsections

736.0201(5) and (6) and section 736.0206, are wholly irrelevant to what we have here.3

It would render subsection (1), where the legislature explicitly identifies the three

exceptions, wholly superfluous if we interpret subsection (3) in isolation, as the

daughters suggest.

              Subsection (3) merely provides the trial court the discretion to continue

supervision of a trust. It does not, and cannot, nullify subsection (1)'s mandate as to the

applicability of the Florida Rules of Civil Procedure. This would make little sense. As

we explained earlier, if a statutory provision "appears to have a clear meaning in



              3Subsections    736.0201(5) and (6) are inapplicable here. Subsection
736.0201(5) relates to the construction of testamentary trusts, which are governed by
the Florida Probate Rules. See § 736.0201(5). Subsection (6) relates to the application
of a particular Florida Rule of Civil Procedure, rule 1.525, in certain circumstances. See
§ 736.0201(6). The legislature set forth a third exception to the mandatory application
of the Florida Rules of Civil Procedure in section 736.0201(1). But section 736.0206 is
also inapplicable here, as it relates to proceedings initiated to review the employment of
agents and compensation of trustees and employees of a trust.



                                            -8-
isolation, 'but when given that meaning is inconsistent with other parts of the same

statute or others in pari materia,' " we must examine "the entire act and those in pari

materia in order to ascertain the overall legislative intent." Boatright, 218 So. 3d at 967

(alteration in original) (quoting McLaughlin, 102 So. 2d at 575–76). Reading these

subsections of the same statute together so as to not render subsection (1)'s

enumerated exceptions as superfluous, as we must, yields the conclusion that section

736.0201(3) does not provide a means for the trial court to sidestep section

736.0201(1)'s mandate that the Florida Rules of Civil Procedure section "shall" apply.

See id. ("Whenever possible, we must avoid construing legal text as 'mere

surplusage.' " (quoting Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla.

2003))). And section 736.0201(3) certainly does not permit the daughters or the trustee

to keep Mr. Baden's lawsuit pending so that the trustee may file claims, motions for

guidance, and so on.4 Of course, the legislature has provided an avenue for a party to

the trust to file his or her own separate action consistent with the Florida Trust Code.

See generally § 736.0201(4). But that is not the case before us.

               We next address the daughters' argument that the exception identified in

the opening clause of rule 1.420(a)(1) prevented Mr. Baden from voluntarily dismissing

his own lawsuit. The rule provides that the plaintiff may dismiss a lawsuit without an

order of the court "[e]xcept in actions in which property has been seized or is in the



               4One  scenario in which a trust case would presumably be permitted to
remain open, assuming court approval, would be when a trustee initially seeks
instruction of the court pursuant to section 736.0201(4)(e) ("A judicial proceeding
involving a trust may relate to the validity, administration, or distribution of trust,
including proceedings to . . . (e) . . . instruct trustees . . . .") and also requests that the
case remain open in anticipation of issues likely to arise in the short or medium term.


                                              -9-
custody of the court." Fla. R. Civ. P. 1.420(a)(1). In its sua sponte order striking Mr.

Baden's notice of voluntary dismissal, the trial court ruled that "[t]he successor trustee of

the [trust] is under this [c]ourt's direction, supervision and control and therefore the

funds being held by the successor trustee are in the custody of this [c]ourt" such that the

court "continues to retain jurisdiction to supervise the [trust] and the successor trustee."

              The basis for this conclusion was the daughters' contention that the

phrase "custody of the court" should be taken to encompass the control of the court, as

opposed to merely the court's custody over funds deposited in the court registry. The

daughters rely on Black's Law Dictionary, where "custody" is defined as "[t]he care and

control of a thing or person for inspection, preservation, or security." Custody, Black's

Law Dictionary (8th ed. 2004). The daughters contend that because the trial court had

previously issued orders granting or denying the trustee's motions for authorization to

engage in transactions with trust assets, as well as orders providing direction to and

placing limitations on the trustee beyond the trustee's powers and limitations defined in

the trust instrument,5 the trust assets are in the "custody" of the court.

              Other than Black's Law Dictionary, the daughters identify no authority to

support their contention that this expansive view of "custody of the court" applies in the

context of rule 1.420(a)(1). They cite to Ginsburg v. Carney, 514 So. 2d 1153, 1154

(Fla. 2d DCA 1987), which restates the rule: "The exception contained in the rule

precludes the effective taking of a voluntary dismissal, where, as here, funds are in the


              5For example, in its April 20, 2015, "order setting forth trustee's powers
and authority and procedure," the court, in addition to reciting verbatim the provisions of
the Trust Code and trust instrument delineating the trustee's authority, directed that the
trustee must communicate to the parties any plans to engage in trust-related
transactions involving more than $5000 or any activity involving a land use application.


                                            - 10 -
custody of the court." Ginsburg, however, is readily distinguishable from what we have

here. The funds in Ginsburg had been deposited in the court registry. Id. Here, the

value of the cash owned by Trust, based on the limited record before us, is between

$269,000 and $400,000 and is deposited in a bank account.

              We conclude that the most natural reading of the term "property . . . in the

custody of the court" in rule 1.420(a)(1) is money or other property in the actual custody

of the court, such as funds deposited in the court registry. Those are funds that are in

the actual custody of the court, not trust property on the transactions of which the court

has issued orders. Cf. Our Gang, Inc. v. Commvest Sec., Inc., 608 So. 2d 542, 544–45

(Fla. 4th DCA 1992) (noting that where the court had issued an order directing that

funds be deposited into the court registry but where no such deposit had been

accomplished, rule 1.420(a)(1) did not apply).6

              Mr. Baden has successfully demonstrated that his voluntary dismissal

divested the trial court of jurisdiction over his lawsuit. Accordingly, we grant his petition

for writ of prohibition and quash the trial court's April 24, 2018, order that declared the

voluntary dismissal a nullity.

              Petition granted.



NORTHCUTT and CRENSHAW, JJ., Concur.


              6Lastly, the daughters contend that Mr. Baden failed to file his notice of
voluntary dismissal "before a hearing on motion for summary judgment." See Fla. R.
Civ. P. 1.420(a)(1)(A). Specifically, they equate a hearing on a motion for summary
judgment to the proceedings leading to the court's December 2014 partial final judgment
resolving the trust-related counts in Mr. Baden's complaint. We reject this argument.
No motion for summary judgment was ever filed in the first instance, let alone one filed
with the requisite particularity requirements set forth in the rule governing motions for
summary judgment. See Fla. R. Civ. P. 1.510(c).

                                            - 11 -
