DARYL BERNARD, APPELLANT,
v.
DONALD S. ROSE, APPELLEE
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The court held that a stamped signature on a dismissal order does not render it void, and a motion to reinstate a case dismissed for lack of prosecution must be filed within one month.
[1] A signature may be validly affixed by various means in the absence of a statute or rule prescribing a specific method.
[2] A trial court lacks subject matter jurisdiction to reinstate a cause of action dismissed for lack of prosecution if the motion for reinstatement is not filed within one m…
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Join FLexlaw to unlock all legal intelligencePlaintiff's suit was dismissed for failure to prosecute. He later filed a motion to reopen, arguing the dismissal order was void because it had a stam…
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Daryl Bernard seeks to reverse a final order denying his motion to reopen his suit against Donald Rose. We affirm.
Mr. Bernard initially filed suit against his former attorney, Mr. Rose, on July 29, 2004. On October 28, 2004, defendant filed a motion for extension of time to file a response. This motion was the only record activity until November 16, 2005, when Mr. Bernard filed a “non-military affidavit.” On January 4, 2006, the trial court sua sponte filed a motion that required Bernard to show good cause, in writing, at least five days before the scheduled hearing, as to why the case should not be dismissed for failure to prosecute, pursuant to Florida Rule of Civil Procedure 1.420. The hearing was set for January 27, 2006.1 Although Mr. Bernard claims to have attended this hearing, there is no record that the hearing occurred. Because Mr. Bernard untimely filed his response to show good cause, the case was dismissed on February 27, 2006, “without further order of the court.” Mr. Bernard, however, continued to file amended complaints on this case for the next two years, on the anniversary dates of the order. Then, on February 27, 2009, Bernard filed a motion to reopen the case and noticed the hearing for 9:00 a.m. on March 18, 2009. Mr. Bernard then failed to appear at the hearing. The lower court denied the motion on March 18, 2009, citing Mr. *948Bernard’s failure to appear. On March 24, 2010, the trial court held another hearing to consider reopening the case; the court denied the motion because the court did “not have jurisdiction.”
Mr. Bernard argues on appeal that the final judgment dismissing his suit for lack of record activity is void because the dismissal order was signed with a signature stamp, rather than by the judge’s actual pen-and-ink signature. This argument is without merit. According to Haire v. Florida Department of Agriculture & Consumer Services, 870 So.2d 774, 789 (Fla.2004), the general rule that, “in the absence of a statute or rule prescribing the method of a signature, a signature may be validly affixed by a number of different means,” is applicable here.2 The fact that the judge stamped, but did not personally sign, the order that dismissed the case is of little consequence to the validity of the order in question. Moreover, the dismissal order does not contain the type of defect necessary to render a judgment void pursuant to Rule 1.540(b)(4), Florida Rules of Civil Procedure.3
Because the judgment was not void, the appellant’s only remaining hope might have been to reinstate his claim pursuant to Florida Rule of Civil Procedure 1.420. However, this route fails as well. The Author’s Comment to the rule explicitly notes the requirement that a motion for reinstatement “must be served within one month after the order of dismissal.” Fla. R. Civ. P. 1.420, Author’s Comment ¶ 9 (original emphasis); see also Larybar, Inc. v. City of Miami Beach, 208 So.2d 129, 130 (Fla. 3d DCA 1968). A trial court lacks subject matter jurisdiction over a cause where the motion to reinstate the cause was not filed within one month of the dismissal. See Wilds v. Permenter, 228 So.2d 408, 409 (Fla. 4th DCA 1969) (holding that when a cause of action is dismissed for lack of prosecution and where a motion to reinstate the cause is not made within one month thereafter, the order of dismissal becomes final and the jurisdiction of the trial court over the subject matter and the cause is finally ended). Because Mr. Bernard filed his motion to reinstate more than one month from the date of rendition of the trial court’s order dismissing his case for lack of prosecution, the trial court no longer had subject matter jurisdiction to reinstate the action.
We affirm the trial court’s order denying Mr. Bernard’s motion to reopen the case.
Affirmed.
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Citator
Cited By
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Morin Magloire and Germain Jean Claude v. The Bank OF NEW York, 147 So. 3d 594 (Fla. 4th DCA 2014)…less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.” Fla. R. Civ. P. 1.420(e) (emphasis added). . The type of jurisdiction at issue in the instant case is that of subject-matter jurisdiction. See Bernard v. Rose, 68 So. 3d 946, 948 (Fla.3d DCA 2011) (referring to the trial court’s jurisdiction over a case after a dismissal for lack of prosecution as that of subject-matter jurisdiction).…
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Carroll Goodman v. Goodman, 126 So. 3d 310 (Fla. 3d DCA 2013)…lief from void judgment may be granted at any time). This Court also has ruled that the failure to give due process notice and the failure to grant a necessary party’s motion to intervene are defects that can render a judgment void. Bernard v. Rose, 68 So. 3d 946, 948 n. 3 (Fla. 3d DCA 2011). The' trial court further erred when it denied Carroll’s motion to intervene because she did not stand to “gain or lose by the effect of the adoption judgment.” Carroll brought the motion to intervene in her representat…
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Schaffer v. First Bank, 73 So. 3d 829 (Fla. 4th DCA 2011)…ution of the case before the dismissal. The trial court was not without jurisdiction to reinstate the case under these circumstances. The petition is without merit. Petition denied. GROSS, DAMOORGIAN and LEVINE, JJ., concur. . In Bernard v. Rose, 68 So. 3d 946, 948 (Fla. 3d DCA 2011), the references to the Author’s Comment to the original version of the rule, and this court’s 1969 decision in Wilds, were made in passing and were not essential to the court’s decision.…
Authorities Cited
- Haire v. Fla. Dep't OF Agric. & Consumer Servs., 870 So. 2d 774 (Fla. 2004)
- Wilds v. Permenter, 228 So. 2d 408 (Fla. 4th DCA 1969)
- AMENDMENTS TO THE RULES OF JUD. ADMINISTRATION-RULE 2.090-ELECTRONIC TRANSMISSION & FILING OF DOCUMENTS, 681 So. 2d 698 (Fla. 1996)
- Heath v. Miller, 208 So. 2d 129 (Fla. 3d DCA 1968)