Bender v. First Fidelity Sav. and Loan Ass'n of Winter Park, 84-2646
| Decision Date | 06 February 1985 |
| Docket Number | No. 84-2646,84-2646 |
| Citation | 463 So.2d 445,10 Fla. L. Weekly 312 |
| Parties | 10 Fla. L. Weekly 312 Andrew BENDER, Petitioner, v. FIRST FIDELITY SAVINGS AND LOAN ASSOCIATION OF WINTER PARK f/k/a First Federal Savings and Loan Association of Martin County, etc., Respondent. |
| Court | Florida District Court of Appeals |
John W. Case, Lauderdale By The Sea, for petitioner.
Robert L. Lord, Jr. of Papy, Poole, Weissenborn & Papy, Coral Gables, for respondent.
Petitioner seeks relief by petition for writ of prohibition from an order which granted First Fidelity Savings and Loan Association's motion to amend its notice of voluntary dismissal from "with" prejudice to "without" prejudice. Petitioner has not sought the proper remedy. The English v. McCrary, 348 So.2d 293, 297 (Fla.1977). However, Florida Rule of Appellate Procedure 9.040(c) provides:
If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.
We elect to treat this petition as a non-final appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(5), and we affirm the order of the trial court on the authority of Shampaine Industries v. South Broward Hospital, 411 So.2d 364, (Fla. 4th DCA 1982).
AFFIRMED.
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...or excusable neglect. Miller, 453 So.2d at 490; United Services, 428 So.2d at 335. But see Bender v. First Fidelity Savings and Loan Assoc. of Winter Park, 463 So.2d 445, 446 (Fla. 4th DCA 1985); Shampaine Industries, Inc. v. South Broward Hospital District, 411 So.2d 364, 367 (Fla. 4th DCA......
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Markin v. Markin, 4D04-719.
...will not lie to compel the undoing of something already done, such as an order already entered. Bender v. First Fid. Sav. & Loan Ass'n of Winter Park, 463 So.2d 445 (Fla. 4th DCA 1985), approved, 491 So.2d 276 (Fla.1986). Thus, to the extent petitioner seeks prohibition of the order grantin......