Hibbard v. State Road Dept. of Fla., 38213
| Decision Date | 30 July 1969 |
| Docket Number | No. 38213,38213 |
| Parties | Elinor HIBBARD, Petitioner, v. STATE ROAD DEPARTMENT OF FLORIDA et al., Respondents. |
| Court | Florida Supreme Court |
John C. Dent, Jr., of Cramer, Robinson, Ginsburg & Ross, Sarasota, for petitioner.
J. Douglas Arnest and Worth Dexter, Jr., of Dexter, Conlee & Bissell, Sarasota, Howard Hadley, Gainsville, Louis S. St. Laurent, Tallahassee, and Geoffrey B. Dobson, Bronson, for respondents.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 216 So.2d 245. Our jurisdiction is based on conflict between the decision sought to be reviewed and a prior decision of this Court.
Petitioner filed a complaint seeking a determination of her rights, if any, to a twenty-five (25) foot strip of land against which respondents, State Road Department and Sarasota County, had instituted eminent domain proceedings to acquire right-of-way. Other respondents, Palmer National Bank and Gulf-to-Bay Mobile Home Sites, Inc., claimed interests adverse to petitioner.
Respondents, State Road Department and Sarasota County, filed answers and respondents, Palmer National Bank and Gulf-to-Bay Mobile Home Sites, Inc., moved to dismiss the complaint for failure to state a cause of action. The trial court entered its order granting the motion to dismiss and allowed six (6) days within which petitioner could amend her complaint. A stipulation between all the attorneys was entered extending the time for filing an amended complaint, by ten (10) days. Within the time for filing an amended complaint, petitioner filed and served a notice of voluntary dismissal. Respondents, Palmer National Bank and Gulf-to-Bay then filed a motion for final judgment. Judgment was entered by the trial court dismissing the action with prejudice.
On appeal the District Court of Appeal, Second District, framed the issue presented for its determination as follows:
"[W]hether a trial judge, who dismisses a case with leave to file an amended complaint, acted properly in entering a final judgment dismissing the cause with prejudice when the plaintiff, instead of filing an amended complaint within the time allotted, filed a voluntary dismissal."
The District Court concluded that the trial court did not abuse its discretion in dismissing the cause with prejudice.
The decision of the District Court conflicts with Hancock v. Piper, ...
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Wiggins v. Pipkin
...be distinguished from an interlocutory order, which does not terminate the right to take a voluntary dismissal. See Hibbard v. State Road Dep't, 225 So.2d 901, 902 (Fla.1969) ("The order of the trial court dismissing the complaint with leave to amend was interlocutory in nature and did not ......