A. E. ANDERSON, JR., PETITIONER,
v.
VERNA S. LOVEJOY, RESPONDENT; JOHN S. COWDERY, PETITIONER, V. VERNA S. LOVEJOY, RESPONDENT
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Two defendants sought certiorari review of a trial court order that set aside a plaintiff's notice of voluntary dismissal filed pursuant to Florida Rule of Civil Procedure 1.420(a)(1)(i). The court held that once a notice of voluntary dismissal becomes effective under the rule, the trial court lacks jurisdiction to entertain a motion to reactivate the dismissed action, even when the dismissal resulted from counsel's erroneous advice about statute of limitations consequences.
A trial court acts in excess of its jurisdiction by entertaining a motion to set aside a notice of voluntary dismissal that became effective under the rule. An attorney's erroneous advice inducing a plaintiff to consent to dismissal is not remediable under Rule 1.540(b), Fla.R.Civ.P., nor does the court retain jurisdiction to reactivate the action once it has been dismissed pursuant to the rule.
[1] A trial court acts in excess of its jurisdiction by entertaining a motion to reactivate an action previously dismissed by a voluntary notice of dismissal.
[2] A plaintiff's consent to a voluntary dismissal, induced by counsel's erroneous advice regarding the statute of limitations, is not remediable under Rule 1.540(b), Fla.R.C…
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Join FLexlaw to unlock all legal intelligence“The trial court acted in excess of its jurisdiction by entertaining plaintiff's motion to reactivate the dismissed action.”
Establishes the core holding that trial courts lack jurisdiction over motions to set aside effective voluntary dismissals.
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Join FLexlaw to unlock all legal intelligenceA plaintiff in a personal injury action filed a notice of voluntary dismissal without prejudice, acting on her counsel's advice that she could refile …
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SMITH, Acting Chief Judge.
Two defendants in an action for personal injuries seek common law certiorari review of a trial court order setting aside, on plaintiff’s motion, a notice of voluntary dismissal previously filed by plaintiff pursuant to Rule 1.420(a)(l)(i), Fla.R.Civ.P. The notice of dismissal operated under the Rule to dismiss plaintiffs action without prejudice and without the necessity for an order of dismissal. Plaintiff’s prior counsel obtained her permission to dismiss the action on his advice that she could later refile; according to her affidavit, he did not advise her that the statute of limitations would bar a new action. But the statute apparently had run. The trial court acted in excess of its jurisdiction by entertaining plaintiff’s motion to reactivate the dismissed action. The lawyer’s erroneous advice, inducing the plaintiff to consent to the dismissal, was not remediable under Rule 1.540(b), Fla.R.Civ.P. See Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So. 2d 526 (Fla. 4th DCA 1970). Cooper v. Carroll, 239 So. 2d 511 (Fla. 3d DCA 1970), is not to the contrary; the court there granted relief for plaintiff’s unintended and inadvertent dismissal of his action as to all defendants. Nor is this a case in which plaintiff’s attorney, without authority, dismissed or otherwise finally terminated plaintiff’s case on the merits. See Palm Beach Royal Hotel, Inc. v. Breese, 154 So. 2d 698 (Fla. 2d DCA 1963); Annot., 56 A.L.R.2d 1290 (1957). We disagree with Randle Eastern Ambulance Serv., Inc. v. Vasta, 345 So. 2d 1084 (Fla. 3d DCA 1977), which is directly contrary to our decision.
The petitions for writ of certiorari are GRANTED and the order setting aside plaintiff’s notice of voluntary dismissal is VACATED.
BOOTH, J., concurs.
ERVIN, J., dissents.
ERVIN, Judge,
dissenting.
Is a voluntary notice of dismissal a proceeding contemplated by Fla.R.Civ.P. 1.540(b), permitting a trial court to relieve a party on the grounds of mistake, newly discovered evidence, etc.? The majority states it is not and relies upon Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So. 2d 526 (Fla. 4th DCA 1970). While Rich Motors, Inc. held that a trial judge has no discretion under Fla.R.Civ.P. 1.420(a)(1)(i) to grant or deny a voluntary dismissal, and therefore precludes him from, reviewing such dismissal, the opinion made no reference at all to Rule 1.540. On facts practically identical to those involved in this case, the Third District Court of Appeal in Randall Eastern Ambulance Serv., Inc. v. Vasta, 345 So. 2d 1084 (Fla. 3rd DCA 1977), held a voluntary notice of dismissal was appropriately reviewable by the trial court upon a Rule 1.540(b) motion. The court’s opinion conceded it was in conflict with Rich Motors, Inc. A petition for writ of certiorari based upon conflict is presently pending before the Florida Supreme Court from that decision, but at the present time has neither been granted or denied.
While the rendition of a judgment by a court lacking jurisdiction is a clear departure from the essential requirements of law, Seaboard Airline R. Co. v. Ray, 52 Fla. 634, 42 So. 714 (1906), I am not disposed to conclude that when two or more district courts of appeal are in direct conflict, and a trial judge follows the one while rejecting the other, his judgment may be impeached by a reviewing court’s determination it is a clear departure from the essential requirements of the law.
I would deny the petition for writ of certiorari.
Cases With Similar Vibessemantic neighbors from the corpus
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Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978)…420(a)(1)(i). . Randle Eastern Ambulance Serv., Jnc. v. Vasta, 345 So. 2d 1084 (Fla. 3d DCA 1977). . Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So. 2d 526 (Fla. 4th DCA 1970). . Art. V, § 3(b)(3), Fla.Const. . Anderson v. Lovejoy, 354 So. 2d 951 (Fla. 1st DCA 1978), pending on cert., No. 53,472 (Fla.). . See Gate City, Inc. v. Arnold Constr. Co., 243 So. 2d 637 (Fla. 4th DCA 1971). This view as to the effect of a voluntary dismissal was preferred by Massey and Klock in their 1972 survey of…
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Tinsley v. Lovett McDONALD, 378 So. 2d 816 (Fla. 3d DCA 1979)…Florida in Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So. 2d 68 (Fla.1978), as applied in [*817] Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, Inc., 371 So. 2d 492 (Fla. 4th DCA 1979); and Anderson v. Lovejoy, 354 So. 2d 951 (Fla. 1st DCA 1978). The plaintiffs instituted a lawsuit against the defendants in 1975, and then took a voluntary dismissal in that suit. In 1979, the plaintiffs refiled the same cause of action against the same defendants. Thereafter, the plainti…1 / 2
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Lovejoy v. Anderson, 366 So. 2d 396 (Fla. 1978)…PER CURIAM. Petitioner has asked us to review the decision of the First District Court of Appeal, reported at 354 So. 2d. 951, alleging that it is in direct conflict with the decision of the Third District Court of Appeal in Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So. 2d 1084 (Fla. 3d DCA 1977). We recently quashed this latter decision. Randle-Eastern Ambulanc…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Seaboard Air Line Railway v. Ray, 52 Fla. 634 (Fla. 1906)
- Palm Beach Royal Hotel, Inc. v. Breese, 154 So. 2d 698 (Fla. 2d DCA 1963)
- Cooper v. Carroll, 239 So. 2d 511 (Fla. 3d DCA 1970)
- Randle E. Ambulance Serv., Inc. v. Vasta, 345 So. 2d 1084 (Fla. 3d DCA 1977)
- Shands & Baker, Inc. v. Holmes Co., Inc., 244 So. 2d 526 (Fla. 2d DCA 1970)
- Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So. 2d 526 (Fla. 4th DCA 1970)