MICHAEL DAVIDSON AND CATHERINE DAVIDSON, APPELLANTS,
v.
LENGLEN CONDO ASSOCIATION, LAUDERDALE TENNIS CLUB, INC., AND TENNIS CLUB LENGLEN CONDOMINIUM, INC., APPELLEES
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The Davidsons settled with one defendant and filed a notice of dismissal that accidentally included all defendants rather than just the settling defendant. The trial court denied their motion to correct the notice, but the appellate court reversed, finding the omission of the limiting language was a clerical error supported by affidavit evidence.
The trial court abused its discretion in denying the Motion to Strike because the affidavit attached to the Motion for Rehearing sufficiently demonstrated the error was secretarial rather than a judgmental mistake, allowing correction under the standards established in Miller v. Fortune Insurance Co.
[1] A trial court has jurisdiction to correct clerical, but not substantive, errors in a case.
[2] A party seeking to correct a clerical error in a filing must demonstrate that the error was secretarial in nature and not a tactical or judgmental mistake by counsel.
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Join FLexlaw to unlock all legal intelligence“It is clear from Miller that trial courts have the jurisdiction to correct only clerical, i.e., secretarial, substantive errors in cases such as the present one. Rule 1.540(b), Florida Rules of Civil Procedure, may not be employed for relief from an attorney's tactical errors or judgmental mistakes or in cases of attorney miscalculation.”
Establishes the legal standard distinguishing between correctable clerical errors and non-correctable attorney errors.
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Join FLexlaw to unlock all legal intelligenceThe Davidsons were involved in a multiparty lawsuit and reached a settlement with defendant Gary Green. They filed a Notice of Voluntary Dismissal tha…
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HERSEY, Judge.
In a multiparty lawsuit, appellants, Michael and Catherine Davidson, reached a settlement with Gary Green, one of the defendants, and filed a Notice of Voluntary Dismissal. Subsequently, appellants filed a Corrected Notice of Voluntary Dismissal in order to indicate that the dismissal applied only to defendant Green and not to the other defendants (appellees herein). Thereafter, the court denied appellants’ Motion to Strike the original and substitute the corrected Notice of Dismissal, precipitating this appeal.
In an affidavit filed with a Motion for Rehearing of the order denying the Motion to Strike, appellants alleged that a secretarial error caused the omission of the limiting phrase “as to Gary Green, only” in the original Notice. We agree and reverse on the authority of Miller v. Fortune Insurance Co., 484 So. 2d 1221 (Fla.1986), and its progeny.
It is clear from Miller that trial courts have the jurisdiction to correct only clerical, i.e., secretarial, substantive errors in cases such as the present one. Rule 1.540(b), Florida Rules of Civil Procedure, may not be employed for relief from an attorney's tactical errors or judgmental mistakes or in cases of attorney miscalculation. Miller, 484 So. 2d at 1223-24. Appellants’ Motion to Strike did not indicate the cause of the alleged mistake; it simply stated that the first Voluntary Dismissal “was mistakeningly [sic] entered.” Nor was a supporting affidavit attached to the Motion from either appellants’ attorney or the attorney’s secretary indicating that this was purely a clerical error. Under these circumstances, the trial court did not abuse its discretion in denying appellants’ Motion to Strike.
On the other hand, the record reflects that attached to appellants’ Motion for Rehearing was an affidavit of appellants’ counsel stating that the first Notice of Voluntary Dismissal With Prejudice as to all Defendants was merely secretarial error. Furthermore, this affidavit set forth two reasons supporting the premise that it was secretarial error: (1) the fact that appellants had entered into a settlement with Green only and not with the other defendants; and (2) the fact that there had been extensive litigation between appellants and the remaining defendants after the Green settlement and the filing of the first Notice of Dismissal. The record on appeal supports the second reason; although it does not reflect the settlement with Green, it also does not reflect a settlement between appellants and appellees.
While appellants’ Motion to Strike did not specify that secretarial error was the cause of the alleged mistake in the first Notice of Voluntary Dismissal, in view of the complete contents of the affidavit of appellants’ attorney attached to the Motion for Rehearing, we find that appellants have sufficiently demonstrated that the alleged error in the first Notice of Voluntary Dismissal With Prejudice was the result of secretarial error and was not due to a judgmental mistake or miscalculation on the part of their attorney.
Accordingly, we reverse and remand for further appropriate proceedings.
POLEN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.
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Pino v. The Bank OF NEW York, 121 So. 3d 23 (Fla. 2013)…CA 2011); Wells Fargo Bank, NA v. Haecherl, 56 So. 3d 892, 894 (Fla. 4th DCA 2011); Rabello v. Alonso, 927 So. 2d 45, 46 (Fla. 3d DCA 2006); DiPiazza v. Palm Beach Mall, Inc., 722 So. 2d 831, 832 (Fla. 2d DCA 1998); Davidson v. Lenglen Condo Assoc., 602 So. 2d 687, 688 (Fla. 4th DCA 1992); Freeman v. Sanders, 562 So. 2d 834, 834-35 (Fla. 1st DCA 1990). This makes sense, of course, because a plaintiff who unintentionally files a dismissal with prejudice to the commencement of another action, like in Miller, is…
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Cottrell v. Taylor, 198 So. 3d 688 (Fla. 2d DCA 2016)…are not regarded as mistakes within the meaning of rule 1.540(b)(1) — and thus will not relieve a party from a voluntary dismissal — while nonjudgmental errors do qualify for relief under the rule. See id.; see also Davidson v. Lenglen Condo Ass’n, 602 So. 2d 687, 688 (Fla. 4th DCA 1992) (“[Tjrial courts have the jurisdiction to cor rect only clerical, i.e.,' secretarial, substantive errors in cases such as the present one. Rule 1.540(b) ... may not be employed for relief from an attorney’s tactical errors o…
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State Farm Mut. Auto. Ins. Co. v. Isom, 681 So. 2d 1170 (Fla. 5th DCA 1996)…dgments based on mistakes which result from oversight, neglect or accident. Curbelo v. Ullman, 571 So. 2d 443 (Fla.1990); Harrison v. La Placida Community Association, Inc., 665 So. 2d 1138 (Fla. 4th DCA 1996); Davidson v. Lenglen Condo Association, 602 So. 2d 687 (Fla. 4th DCA 1992); Eastern Ceiling and Supply Corporation, Inc., v. Powerhouse Insulation, Inc., 589 So. 2d 383 (Fla. 4th DCA 1991). The mediation settlement agreement specifically provides that the action shall be dismissed with prejudice upon r…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. Fortune Ins. Co., 484 So. 2d 1221 (Fla. 1986)