WELLS FARGO BANK, N.A., APPELLANT,
v.
JULIO ROJAS A/K/A JULIO A. ROJAS, DULCY ROJAS A/K/A DULCY M. ROJAS, APPELLEES

Fla. 4th DCA | 2017-05-24
No. 4D16-4301
Taylor, Levine and Forst, JJ., concur.
219 So. 3d 940 Florida District Court of Appeal, Fourth District (2017)

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Holding

The court held that the trial court abused its discretion in denying the bank's motion to vacate a notice of voluntary dismissal filed due to a clerical mistake.


Facts & Procedural History

The bank inadvertently filed an unsigned notice of voluntary dismissal along with a premature final disposition form, despite the case still being sch…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
Per Curiam.

Per Curiam.

We reverse the trial court’s order denying the bank’s Florida Rule of Civil Procedure 1.540(b) motion to vacate a notice of voluntary dismissal. The notice was filed due to clerical mistake, and the trial court abused its discretion. See Miller v. Fortune Ins. Co., 484 So.2d 1221, 1224 (Fla. 1986) (holding that rule 1.540(b)(1) confers on trial courts the power “to correct clerical substantive errors in a voluntary notice of dismissal”).

The record and affidavit filed by the bank showed that the unsigned and undated notice of voluntary dismissal was inadvertently filed along with a premature final disposition form. See Fla. R. Civ. P. 1.100(c)(3) (requiring the prevailing party to file a final disposition form (form 1.998) when an order or judgment is entered disposing of an action).1 The final disposition form was filed while the case remained scheduled for trial and indicated the case was resolved “by non-jury trial.” The bank filed witness and exhibit lists for the upcoming trial as- well as affidavits in support of attorney’s fees and costs. The record established that the prematurely-filed disposition form and unexecuted notice of voluntary dismissal were filed due to a clerical mistake. The trial court abused its discretion in denying the motion to vacate. See Davidson v. Lenglen Condo. Ass’n, 602 So.2d 687, 688 (Fla. 4th DCA 1992). We remand for the trial court to enter an order vacating the voluntary dismissal.

Reversed and remanded.

Taylor, Levine and Forst, JJ., concur.


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