JOHN G. FATOLITIS, APPELLANT,
v.
MARY FATOLITIS, APPELLEE
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A trial court has the authority to correct its own clerical or accidental omissions in an order, even after the time for appeal has passed, if the correction reflects the court's original intent.
The trial court initially dismissed a divorce complaint and counterclaim without reserving jurisdiction for attorney's fees. The defendant later sough…
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On April 9, 1970, the trial court entered its order dismissing with prejudice plaintiff-appellant’s complaint for divorce and dismissing without prejudice the defendant-appellee’s counterclaim for separate maintenance. The court in preparing this order did not include a reservation of jurisdiction over the parties and the matter of attorney’s fees and costs for defendant’s attorney.
On June 9, 1970, defendant gave notice of hearing on her application for attorney’s fees and motion to tax costs. Plaintiff filed his motion to strike defendant’s notice and dismiss the hearing on the grounds that the court’s order failed to retain jurisdiction, and the court had therefore lost jurisdiction over the parties and the subject matter. The court denied plaintiff’s motion to strike and entered an order on July 17, 1970, correcting the order of April 9, 1970. The corrected order said:
“The court finds that it committed an error itself by mistakenly signing and entering an Order dismissing the above matter without reserving jurisdiction over the parties for the matter of attorneys’ fees and costs for the defendant’s attorneys, which the court had fully intended to do at the time of, and after the final hearing of this matter, and further the court finds that this was discussed between the attorneys for the parties in the court’s presence and it was understood that this matter would be taken up at a later date.”
Plaintiff appeals from this order.
We believe F.R.C.P. 1.540, 31 F.S.A. offers relief in situations such as this where the court itself makes a mistake or omission. This was not a mistake of law as occurred in Constant v. Tillitson, Fla.App. *5261968, 214 So.2d 91. If it were, Rule 1.540 would not provide relief.
The trial judge committed no error in correcting his order, and we therefore affirm.
PIERCE, C. J., and McNULTY, J., concur.
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Fatolitis v. Fatolitis, 271 So. 2d 227 (Fla. 2d DCA 1973)…complaint and counterclaim. Mary did not file a motion for attorneys’ fees in this Court as provided in FAR 3.16(e), 32 F.S.A., nor did this Court fix or refer to attorneys’ fees in its decision or mandate. See Fatolitis v. Fatolitis, Fla.App. 1971, 247 So. 2d 525. Mary’s right [*229] to attorneys’ fees in that appeal has therefore been terminated, and the trial Court does not have authority to fix attorneys’ fees for such services, Howell v. Howell, Fla.App.1966, 183 So. 2d 261; Anderson v. Anderson, Fla.App…
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Sottile v. Sottile, 551 So. 2d 608 (Fla. 5th DCA 1989)…DCA 1980). Rule 1.540, however, provides relief in those instances in which an attorney’s fees provision has not been set forth in the final judgment as a result of, among other reasons, clerical mistake or inadvertence. In Fatolitis v. Fatolitis, 247 So. 2d 525 (Fla. 2d DCA 1971), the trial court entered an order dismissing with prejudice the husband’s complaint for divorce and dismissing with prejudice the defendant wife’s counterclaim for separate maintenance. In preparing the order, the trial court did…
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Am. Sav. & Loan Ass'n OF Fla. v. Saga Dev. Corp., 362 So. 2d 54 (Fla. 3d DCA 1978)…own judgments, and we perceive no error in the actions taken. Therefore, the orders appealed from are affirmed. Marsh v. Marsh, 72 Fla. 142, 72 So. 638 (1916); Surratt v. Fleming, 309 So. 2d 614 (Fla. 1st DCA 1975). See also Fatolitis v. Fatolitis, 247 So. 2d 525 (Fla. 2d DCA 1971); Fla.R.Civ.P. 1.540(b). See generally Arlt v. Buchanan, 190 So. 2d 575 (Fla.1966). Affirmed.…
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- Constant v. Tillitson, 214 So. 2d 91 (Fla. 1st DCA 1968)