Cooper v. Carroll

Decision Date29 September 1970
Docket NumberNo. 70--46,70--46
Citation239 So.2d 511
PartiesJohn COOPER, Appellant, v. Grant CARROLL, Appellee.
CourtFlorida District Court of Appeals

Cohen & Hogan, and Alan E. Weinstein, Miami Beach, for appellant.

High, Stack & Davis and Lurie & Capuano and Robert Lazenby, Miami, for appellee.

Before PEARSON, C.J., and CHARLES CARROLL and BARKDULL, JJ.

CARROLL, Judge.

In this civil action brought by Grant Carroll as plaintiff against John Cooper, a minor, and others including a Trysting Place, d/b/a Six West, a notice of dismissal without prejudice was filed by the plaintiff under Rule 1.420(a)(1), F.R.C.P., 1 30 F.S.A. Promptly thereafter the plaintiff filed a motion reciting that his noticed dismissal of the action as to all defendants was done by mistake, in that it had been the intention of the plaintiff that the cause be dismissed only as to the defendant Six West, and requesting leave to file an amended notice which dismissed as to that defendant only.

The trial court after hearing granted the plaintiff's motion, and ordered that 'the original notice of voluntary dismissal without prejudice filed herein by the plaintiff is hereby set aside and substituted therefor is plaintiff's amended notice of voluntary dismissal without prejudice.' The latter, as thus authorized by the court's order, dismissed the cause as to the defendant Six West only. The defendant John Cooper took this appeal from that order.

Appellant contends first that upon the filing of the notice of dismissal the trial court was without power or jurisdiction to take any further action in the cause. In support of that contention appellant argues there was no authority under the rules of civil procedure to grant relief to the plaintiff from the effect of his filed notice of dismissal, contending that Rule 1.540 F.R.C.P., 31 F.S.A. authorizes relief only from a judgment or order, and not from a dismissal notice.

We do not agree. Rule 1.540(b) authorizes the trial court to relieve a party from a final judgment, decree, order or Proceeding, for listed reasons including mistake or inadvertence. In authorizing dismissal of a cause by a plaintiff by the filing of a notice, Rule 1.420 provides a short cut, or expeditious manner of disposition of a cause which otherwise would be accomplished by order of the court on motion of the party. Such action in the cause, equivalent to dismissal by court order, constitutes a 'proceeding' therein from the effect of which the party involved can be granted relief by the trial court under Rule 1.540(b) in an appropriate instance. Here it is clear by the wording of the court's order that such relief was granted to the plaintiff, by setting aside the initial notice of dismissal. No abuse of discretion by the trial court in that connection was shown.

There remains for consideration the question of the effect of the further portion of the challenged order by which the trial court authorized the filing by the plaintiff of an amended notice of dismissal as to only the one defendant Six West.

The problem presented there is that the rule relating to dismissal by notice filed by a plaintiff refers to dismissal of 'an action,' and does not appear to authorize dismissal by such notice of part of the action, that is, as to one or more defendants without dismissal as to all defendants. The rule has been so construed.

In ...

To continue reading

Request your trial
13 cases
  • GEL Corp. v. Dept. of Environmental Protection
    • United States
    • Florida District Court of Appeals
    • June 4, 2004
    ...judicial process, typically by filing a complaint or petition and may include the filing of a notice of dismissal. See Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970) (holding that the filing of a notice of dismissal by the plaintiff constitutes a "proceeding."). The term "hearing" gene......
  • Lauda v. H. F. Mason Equipment Corp.
    • United States
    • Florida District Court of Appeals
    • December 22, 1981
    ...DCA 1981). This is not an instance in which Lauda attempted to voluntarily dismiss one of several defendants. Compare Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970), with Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250 (5th Cir. 1973).5 The present case is not contr......
  • Hinton v. Iowa Nat. Mut. Ins. Co.
    • United States
    • Florida District Court of Appeals
    • July 23, 1975
    ...as parties in the first case, the court below cited Scott v. Permacrete, Inc., Fla.App.1st, 1960, 124 So.2d 887; Cooper v. Carroll, Fla.App.3d, 1970, 239 So.2d 511, and Fears v. Lunsford, Fla.App.1st, 1974, 295 So.2d 323. In Scott, the court held that, standing alone, a notice of voluntary ......
  • Marine Contractors, Inc. v. Armco, Inc., 83-2063
    • United States
    • Florida District Court of Appeals
    • May 23, 1984
    ...Co., 317 So.2d 832 (Fla. 2d DCA 1975), cert. denied, 328 So.2d 842 (Fla. 1976). See also Fla.R.Civ.P. 1.250(b); Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970). Accordingly, we hold under the facts of this case that because the plaintiff sought to dismiss the entire action as to all par......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT