ALLAN H. APPLESTEIN, APPELLANT,
v.
ALBERT H. ALBERRING, APPELLEE
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Defendant-appellant challenged a nunc pro tunc order dismissing his counterclaim with prejudice. The appellate court affirmed, holding that the nunc pro tunc order properly corrected the trial court's record to reflect its original intent to dismiss the counterclaim with prejudice.
The trial court did not err. A nunc pro tunc order may properly correct the record to reflect the court's original intent when the initial order contained an omission through inadvertence or mistake. The nunc pro tunc order here correctly reflected that dismissal with prejudice was the trial court's intention at the time of the original order.
[1] A nunc pro tunc order may be used to correct an omission in the record of a prior action that occurred due to inadvertence or mistake.
[2] A trial court has the authority to enter a nunc pro tunc order to reflect its prior intention to dismiss a counterclaim with prejudice, even if that dismissal was not ini…
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Join FLexlaw to unlock all legal intelligence“The purpose of a nunc pro tunc order is to supply an omission in the record of action previously done which omission was made through inadvertence or mistake.”
Establishes the legal standard for when a nunc pro tunc order is appropriate
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Join FLexlaw to unlock all legal intelligencePlaintiff, a process server for Dade County, sued defendant for assault and false imprisonment, alleging defendant threatened him with a deadly weapon…
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PER CURIAM.
Defendant-appellant seeks review of a nunc pro tunc order dismissing his counterclaim with prejudice.
Plaintiff, employed as a process server by Dade County, Florida, alleged that while attempting service of process upon the defendant-appellant, the defendant threatened and accosted him with a deadly weapon. He filed a complaint seeking compensatory and punitive damages for (1) assault and (2) false imprisonment. In response thereto, defendant filed an answer and a counterclaim against the plaintiff and Dade County. Thereafter, plaintiff-appellee moved to dismiss the counterclaim and his motion was granted by the trial court which in its order of dismissal stated that defendant had no argument in opposition thereto.
Trial on plaintiff’s cause of action commenced on June 4, 1973 and upon recess for luncheon, the parties entered into a discussion of possible settlement. Plaintiff discussed the proposed settlement with the trial judge who explained to him that the counterclaim had been dismissed. In addition, appellant’s counsel allegedly stated that plaintiff’s acceptance of the settlement would end all litigation against the plaintiff. Thereupon, plaintiff accepted the settlement. Several days later, defendant-appellant filed a complaint setting forth the same issues which were pled in the dismissed counterclaim. In addition, defendant filed a motion to compel settlement. Thereafter, the trial judge in the original case had counsel for appellee draw up a nunc pro tunc order which reflected that appellant’s counterclaim was dismissed with prejudice. Based upon the entry thereof, the trial judge in the pending action dismissed appellant’s complaint as res judicata. This appeal followed.
On appeal, defendant-appellant contends it was error to have entered the nunc pro tunc order dismissing his counterclaim with prejudice. We cannot agree.
The purpose of a nunc pro tunc order is to supply an omission in the record of action previously done which omission was made through inadvertence or mistake. Freeman v. Blackburn, Fla.1957, 92 So. 2d 262. The nunc pro tunc order in the case sub judice clearly expresses the fact that through inadvertence the counterclaim was not dismissed with prejudice although such was the court’s intention. Thus, we find the trial judge was correct in entering the nunc pro tunc order herein appealed to supply this omission in the record.
Accordingly, the order of the trial court is affirmed.
Affirmed.
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Luhrs v. State, 394 So. 2d 137 (Fla. 5th DCA 1981)…8 Fla. 985, 124 So. 725 (1929). A nunc pro tunc order is also used to supply an omission in the record of an action previously done but omitted through inadvertence or mistake. Boggs v. Wainwright, 223 So. 2d 316 (Fla.1969); Applestein v. Alberring, 291 So. 2d 206 (Fla. 3d DCA 1974). In Becker v. King, 307 So. 2d 855, 859 (Fla. 4th DCA 1975), the court said: Nunc pro tunc means ‘now for then’ and when applied to the entry of a legal order or judgment it normally does not refer to a new or fresh (de novo) de…
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Robinson v. Tootalian, 691 So. 2d 52 (Fla. 4th DCA 1997)…t nunc pro tunc, which is reversed.1 PARIENTE and SHAHOOD, JJ„ concur. . Orders are entered nunc pro tunc generally for the purpose of making effective a judicial act previously taken which is not apparent from the record. Applestein v. Alberring, 291 So. 2d 206 (Fla. 3d DCA 1974); Nichols v. Walton, 82 Fla. 385, 90 So. 157(1921).…
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Applestein v. Metro. Dade Cnty., 313 So. 2d 774 (Fla. 3d DCA 1975)…orrectness of a summary final judgment on the grounds of res judi-cata. Appellant argues that there are issues and parties to this appeal not involved in this court’s previous consideration of this case. See, Applestein v. Alberring, Fla. App.1974, 291 So. 2d 206. However, our review of the record in light of our earlier decision convinces us that the trial court correctly concluded that the complaint filed by the appellant is barred on the basis of res judicata. Therefore, the judgment appealed is affirme…
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- McKinley Freeman v. Blackburn, 92 So. 2d 262 (Fla. 1957)