Miller v. Fortune Ins. Co., 84-1002

Citation453 So.2d 489
Decision Date27 July 1984
Docket NumberNo. 84-1002,84-1002
PartiesBarbara J. MILLER, Petitioner, v. FORTUNE INSURANCE COMPANY, Respondent.
CourtCourt of Appeal of Florida (US)

Associates and Bruce L. Scheiner, Fort Myers, for petitioner.

Charles P. Schropp and William A. Gillen, Jr. of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for respondent.

CAMPBELL, Judge.

This is a petition for writ of certiorari to review an order of the circuit court affirming the county court's denial of petitioner's request to remove the words "with prejudice" from her notice of voluntary dismissal. We cannot determine that the lower courts departed from the essential requirements of law and, therefore, deny certiorari.

Petitioner, Barbara J. Miller, initially filed suit in county court against Fortune Insurance Company for medical expenses incurred as a result of an automobile accident. Subsequently, petitioner filed a notice of voluntary dismissal "with prejudice" dismissing the action. Thereafter, petitioner filed, pursuant to Rule 1.540(b), Florida Rules of Civil Procedure, a motion for relief from voluntary dismissal on the ground that the filing of the notice "with prejudice" was the result of secretarial error. In support of her motion, she filed two affidavits executed by her attorney and his secretary, which stated that the filing of the notice "with prejudice" was in fact the result of secretarial error and/or excusable neglect.

The county court denied petitioner's motion for relief and she appealed to the circuit court, which affirmed the county court's order. She thereupon sought review in this court by certiorari.

Since we are provided with no record in this case, we cannot determine the basis of the trial judge's ruling denying the motion to remove the words "with prejudice" from the notice of voluntary dismissal. It appears that if the trial judge intended to deny the motion on the basis that he did not believe the affidavits that the words "with prejudice" were placed on the notice as a result of clerical or secretarial error, an evidentiary hearing should have been held and live testimony presented. However, the ruling of the trial court can be sustained as a matter of law on the basis of the holding in Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), that a trial court is divested of jurisdiction once there is a voluntary dismissal of an action. See also Piper Aircraft Corporation v. Prescott, 445 So.2d 591 (Fla. 1st DCA 1984); United Services Automobile Association v. Johnson, 428 So.2d 334 (Fla. 2d DCA 1983).

In Randle, the plaintiff brought a wrongful death action against Randle-Eastern Ambulance Service, Inc. for negligence in performing ambulance services. At trial, the plaintiff was prohibited from introducing certain evidence and, thereupon, voluntarily dismissed the suit. Prior to dismissing the action, the statute of limitations had expired. Subsequently, the plaintiff filed a motion for relief from the voluntary dismissal citing Rule 1.540(b), Florida Rules of Civil Procedure. The trial court granted the motion for relief and reinstated the cause of action. On appeal, the supreme court held that the plaintiff's voluntary dismissal divested the court of jurisdiction to relieve the plaintiff from the dismissal and, thus, the court had no jurisdiction to reinstate the cause of action.

In denying certiorari and holding in accordance with Randle, we consider that we are in conflict with the holding in Shampaine Industries, Inc. v. South Broward Hospital District, 411 So.2d 364 (Fla. 4th DCA 1982). In Shampaine, the plaintiff sought to have the words "with prejudice" removed from her intentionally filed voluntary dismissal contending that the words were inadvertently included in the dismissal. The appellate court affirmed the trial court and allowed the words to be removed, stating that relief is available for voluntary dismissals entered as a result of mistake, inadvertence or excusable neglect. We have some difficulty in deciding exactly what the court in Shampaine has held. 1 The fourth district there observed that it was possible to distinguish Randle from Shampaine on the basis that Randle involved a motion to reinstate the cause of action, and Shampaine was a motion to correct the dismissal by expunging the words "with prejudice." However, the court concluded that such a distinction "would be both highly academic and unjustified." We agree that such a distinction is one without a difference. The fourth district also concluded that if, as stated in Randle, the court loses jurisdiction on a voluntary dismissal, it matters not whether the dismissal was "with prejudice" or "without prejudice." We also agree with that conclusion. The Shampaine court then seems to focus on whether the dismissal was "volitional" or deliberate. They conclude that Randle intended to withhold Rule 1.540(b) relief only where the voluntary dismissal was entered deliberately, and as the result of attorney miscalculation. The Shampaine court then decides...

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6 cases
  • Maffea v. Moe, 85-2451
    • United States
    • Florida District Court of Appeals
    • 26 de fevereiro de 1986
    ...that while a trial court is divested of its jurisdiction when the case has been voluntarily dismissed, e.g., Miller v. Fortune Insurance Company, 453 So.2d 489 (Fla. 2d DCA 1984), there appears to be an exception where the voluntary dismissal was entered as a result of mistake, inadvertence......
  • Anderson v. Watson, 85-697
    • United States
    • Florida District Court of Appeals
    • 25 de setembro de 1985
    ...relieve a plaintiff of the dismissal. Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978); Miller v. Fortune Insurance Co., 453 So.2d 489 (Fla. 2d DCA 1984); United Services Automobile Association v. Johnson, 428 So.2d 334 (Fla. 2d DCA 1983). After a party dismisses an ......
  • Miller v. Fortune Ins. Co.
    • United States
    • Florida Supreme Court
    • 6 de março de 1986
    ...411 So.2d 364 (Fla. 4th DCA 1982). Art. V, § 3(b)(3), Fla. Const. We quash the decision of the district court, Miller v. Fortune Insurance Co., 453 So.2d 489 (Fla. 2d DCA 1984). Miller's attorney filed a voluntary motion to dismiss a suit in county court against Fortune "with prejudice." El......
  • Watson v. Anderson
    • United States
    • Florida Supreme Court
    • 26 de junho de 1986
    ...Art. V, § 3(b)(3), Fla. Const. In deciding the instant case, the Second District relied on its opinion in Miller v. Fortune Insurance Co., 453 So.2d 489 (Fla. 2d DCA 1984), and held that after a party dismisses an action "with prejudice," the trial court no longer has jurisdiction to correc......
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