Anderson v. Lovejoy
| Decision Date | 07 February 1978 |
| Docket Number | GG-439,Nos. GG-393,s. GG-393 |
| Citation | 354 So.2d 951 |
| Parties | A. E. ANDERSON, Jr., Petitioner, v. Verna S. LOVEJOY, Respondent. John S. COWDERY, Petitioner, v. Verna S. LOVEJOY, Respondent. |
| Court | Florida District Court of Appeals |
Robert M. Sharp and Bruce S. Bullock of Bullock, Sharp & Childs, and Joseph O. Stroud, Jr. of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for petitioners Anderson and Cowdery.
Neal D. Evans, Jr., Jacksonville, for respondent.
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)(1) (i), Fla.R.Civ.P. The notice of dismissal operated under the Rule to dismiss plaintiff's 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.
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...
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Piper Aircraft Corp. v. Prescott
...plaintiff of the dismissal. 360 So.2d at 69. In Randle-Eastern, the Supreme Court cited with approval our decision in Anderson v. Lovejoy, 354 So.2d 951 (Fla. 1st DCA 1978), pet. for review denied 366 So.2d 396. In that case, plaintiff's prior counsel filed a notice of voluntary dismissal. ......
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Tinsley v. McDonald
...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. ......
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Commerce & Industry Ins. Co. v. Wellenreiter through Wellenreiter
...v. Green Crane & Concrete Services, Inc., 371 So.2d 492 (Fla. 4th DCA 1979), review denied, 383 So.2d 1195 (Fla.1980); Anderson v. Lovejoy, 354 So.2d 951 (Fla. 1st DCA), review denied, 366 So.2d 396 It is undisputed that respondent failed to present evidence of damages in its cross-claim fo......
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United Services Auto Ass'n v. Johnson
...dismissal under rule 1.420(a)(1)(i) applies equally to a voluntary dismissal under rule 1.420(a)(2). See also Anderson v. Lovejoy, 354 So.2d 951 (Fla. 1st DCA 1978); Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA Therefore, we hold that the trial court was......