DERMA LIFT SALON, INC., A FLORIDA CORPORATION, B. G. GROSS, M.D., AND FRANCIS MASCHEK, PETITIONERS,
v.
HONORABLE EDWARD SWANKO, ACTING CIRCUIT COURT JUDGE, OF THE ELEVENTH JUDICIAL CIRCUIT, RESPONDENT
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Petitioners, defendants in a medical malpractice action, sought a writ of prohibition to prevent the trial court from exercising further jurisdiction after entering a final dismissal order and denying rehearing. The court granted the writ, holding that the trial court lost jurisdiction once it denied the timely rehearing motion and lacked authority to later vacate that denial.
Once a trial court denies a timely motion for rehearing on a final dismissal order, the court's jurisdiction over the cause terminates. The trial court lacked authority to subsequently vacate the order denying rehearing and reinstate the dismissed action.
[1] A trial court loses jurisdiction over an action after entering a final order of dismissal and denying a timely motion for rehearing.
[2] An order of dismissal, even if "without prejudice," is a final appealable order.
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Establishes that final dismissal orders are subject to trial court jurisdiction only if a timely rehearing motion is filed
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Join FLexlaw to unlock all legal intelligenceThe trial court dismissed a medical malpractice action on May 11, 1982, without prejudice, based on plaintiff's failure to comply with discovery rules…
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DANIEL S. PEARSON, Judge.
The petitioners, who are defendants below in a medical malpractice action, contend that the trial court, having entered a final order dismissing the action and denied rehearing thereon, lost jurisdiction over the action and should be prohibited from the further exercise of jurisdiction. The remedy they seek is appropriate. City of St. Petersburg, Florida v. The Circuit Court of the Sixth Judicial Circuit (Fla. 2d DCA 1982) (Case No. 82-1372, opinion filed July 14, 1982); State v. Gooding, 149 So. 2d 55 (Fla. 1st DCA 1963).
On May 11, 1982, the trial court entered an order dismissing without prejudice an action brought by the plaintiff, Maria Oshi-ro, as personal representative of the estate of Jose Oshiro. The basis of the dismissal was that the plaintiff had persistently and continuously failed to comply with rules of discovery and orders of the court to enforce discovery. Plaintiff’s timely motion for rehearing of this order of dismissal was denied on July 19, 1982. On July 20, 1982, the plaintiff filed a motion to set aside the order denying rehearing. On August 18, 1982, the trial court vacated the order denying rehearing and, sub silentio, vacated the order of dismissal by ordering that the “litigation is reinstated and reopened and Plaintiff may go forward with this cause of action.”
The trial court’s order of dismissal entered May 11,1982, albeit “without prejudice,” was a final appealable order, Gries Investment Company v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980), subject to the further jurisdiction of the trial court only upon a timely filed motion for rehearing under Florida Rule of Civil Procedure 1.530, see Snyder v. Gulf American Corporation, 224 So. 2d 405 (Fla. 2d DCA 1969), or on its own initiative within the time allowed for a rehearing motion. When the plaintiff’s motion for rehearing was denied by the trial court on July 19, 1982, the trial court’s jurisdiction over the cause terminated.1 City of St. Petersburg, Florida v. The Circuit Court of the Sixth Judicial Circuit, supra. See Nahoom v. Nahoom, 341 So. 2d 257 (Fla. 3d DCA 1977); State v. Gooding, supra.
Accordingly, the petition for writ of prohibition is granted. The trial court is directed to quash its order of August 18,1982, and to reinstate the order of dismissal. We assume it will not be necessary to issue the writ.
. The plaintiffs motion to set aside the order denying rehearing contained no allegations which could arguably bring it within Florida Rule of Civil Procedure 1.540.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Tobkin v. State, 777 So. 2d 1160 (Fla. 4th DCA 2001)…n 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. See English v. McCrary, 348 So. 2d 293, 296 (Fla.1977); Derma Lift Salon, Inc. v. Swanko, 419 So. 2d 1180 (Fla. 3d DCA 1982). The dissolution action There should be little doubt that the dissolution action may be voluntarily dismissed without leave of court. The wife’s notice of dismissal was filed in accordance with Florida Rule of Family Procedure 1…
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Cap. Bank v. The Honorable Francis X. Knuck, 537 So. 2d 697 (Fla. 3d DCA 1989)…o. 2d 46 (Fla. 4th DCA 1987); Florida Nat’l Bank v. Domanska, 486 So. 2d 1384 (Fla. 3d DCA 1986). PROHIBITION GRANTED.3 .The fact that the order was purportedly "without prejudice" does not affect this conclusion. Derma Lift Salon, Inc. v. Swanko, 419 So. 2d 1180 (Fla. 3d DCA 1982); Gries Investment Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980). . Short of, perhaps, a motion under Florida Rule of Civil Procedure 1.540, which was not filed in this case. . We are sure it will be unnecessary to issue a f…
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O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So. 2d 785 (Fla. 3d DCA 1998)…iece of litigation. See Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)(judgment is “final” even if without prejudice to another action); Capital Bank v. Knuck, 537 So. 2d 697 (Fla. 3d DCA 1989)(same); Derma Lift Salon, Inc. v. Swanko, 419 So. 2d 1180 (Fla. 3d DCA 1982)(same); Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., 415 So. 2d 892 (Fla. 3d DCA 1982)(same). In my opinion, when the plaintiff in this scenario is an insurance company seeking a determination of no coverage an…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)
- State of Fla. ex rel. Huntley Bros., Inc. v. Honorable Marion W. Gooding, 149 So. 2d 55 (Fla. 1st DCA 1963)
- Nahoom v. Nahoom, 341 So. 2d 257 (Fla. 3d DCA 1977)
- Snyder v. Gulf Am. Corp., 224 So. 2d 405 (Fla. 2d DCA 1969)