Miller v. Fortune Ins. Co., No. 65794

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; BOYD; EHRLICH, J., concurs specially with an opinion, in which ADKINS; OVERTON; EHRLICH; ADKINS; OVERTON
Citation484 So.2d 1221,11 Fla. L. Weekly 85
Decision Date06 March 1986
Docket NumberNo. 65794
Parties11 Fla. L. Weekly 85 Barbara J. MILLER, Petitioner, v. FORTUNE INSURANCE CO., Respondent.

Page 1221

484 So.2d 1221
11 Fla. L. Weekly 85
Barbara J. MILLER, Petitioner,
v.
FORTUNE INSURANCE CO., Respondent.
No. 65794.
Supreme Court of Florida.
March 6, 1986.

Arnold R. Ginsberg of Horton, Perse & Ginsberg and Associates and Bruce L. Scheiner, Miami, for petitioner.

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

PER CURIAM.

This case is before us because it conflicts with Shampaine Industries, Inc. v. South Broward Hospital District, 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." Eleven months later, Miller moved the trial court to strike "with prejudice" and substitute "without

Page 1222

prejudice." The motion cited to Florida Rule of Civil Procedure 1.540(b) 1 as authority for the change. Ground for the motion was "secretarial error"--supporting affidavits of the attorney and his secretary stated that standard office procedure was to prepare and file voluntary dismissals "without prejudice" unless otherwise specified by the attorney. The secretary swore she mistakenly typed "with prejudice" and the attorney swore he relied on the standard office policy and failed to catch the error.

The trial judge summarily denied the motion. On appeal to the circuit court, the trial judge was affirmed. The Second District denied plaintiff's petition for writ of certiorari and affirmed the county court's order. The district court held that the trial court is divested of jurisdiction once a voluntary dismissal is filed, relying on our decision in Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978) (Randle ). The district court also noted conflict with Shampaine.

In Randle, the plaintiff voluntarily dismissed suit without prejudice during trial, not realizing that the statute of limitations had run and barred filing a new cause of action. The plaintiff sought relief from this tactical error by moving for withdrawal of the voluntary dismissal. We held "that a voluntary dismissal ... divests the trial court of jurisdiction to relieve the plaintiff of the dismissal." 360 So.2d at 69.

In Shampaine, as in the instant case, the plaintiff voluntarily dismissed with prejudice through mistake. The Fourth District held that the trial court had jurisdiction to grant relief by altering the notice of dismissal to reflect "without prejudice." However, the Shampaine court went beyond this and held that even a voluntary dismissal could be withdrawn in toto if grounds under rule 1.540(b) existed. The court explained its reason for ruling so expansively thus:

It is possible to distinguish Randle [and similar cases] from the current case on the basis that the plaintiffs in those cases sought to reinstate their actions after taking voluntary dismissals without prejudice, whereas the plaintiff here does not seek to reinstate an action at all, but merely wishes to expunge the words "with prejudice" from the notice of dismissal. However, while it may be technically true that the plaintiff here does not seek a reinstatement of the sort seemingly barred by the aforecited overly broad language of Randle ..., and a distinction of the current situation on this basis would permit us to skirt the jurisdictional issue, we believe that any distinction between a prohibited "reinstatement" and a permitted expungement which paves the way for a "refiling" of the same cause of action would be both highly academic and unjustified. We agree that if the trial court indeed has no authority to relieve a party of the consequences of a voluntary dismissal, its lack of authority would appear to apply equally to dismissals filed with prejudice as well as without. We prefer not to hinge our decision in this case upon such a strained and artificial distinction in order to reach an equitable result. Rather, we prefer to confront the jurisdictional issue directly and hold that Rule 1.540(b) may be used to afford relief to all litigants whose attorneys have filed voluntary dismissals as the clear result of the type of "mistake,

Page 1223

inadvertence or excusable neglect" contemplated by Rule 1.540(b).

411 So.2d at 367. We agree with the Shampaine decision.

We adhere to the principle that "[i]t has never been the role of the trial courts of this state to relieve attorneys of their tactical mistakes. The rules of civil procedure were never designed for that purpose, and nothing in Rule 1.540(b) suggests otherwise." Randle, 360 So.2d at 69. There is no error in the result reached in Randle, but that decision failed to fully explain the principles which guided the Court.

The proper and only point for determination by this Court in Randle was whether a judgmental mistake by a lawyer permitted relief provided for by rule 1.540(b).

This Court reasoned in Randle that when a plaintiff voluntarily dismisses an action without order of court pursuant to rule 1.420,

[t]he effect is to remove completely from the court's consideration the power to enter an order, equivalent in all respects to a deprivation of "jurisdiction." If the trial judge loses the ability to exercise judicial discretion or to adjudicate the case in any way, it follows that he has no jurisdiction to...

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60 practice notes
  • Dutton v. City of Midwest City, 113,170.
    • United States
    • Supreme Court of Oklahoma
    • June 30, 2015
    ...Oklahoma Boll Weevil Eradication Organization, 1999 OK 1, ¶ 7, n. 22, 976 P.2d 1035, 1040 ).8 See, e.g., Miller v. Fortune Insurance Co., 484 So.2d 1221, 1224 (Fla.1986) quoting 20 Am.Jur.2d Courts § 92 (1965) (“Of course, the trial court has jurisdiction to determine whether it has jurisdi......
  • Dutton v. City of Midwest City, Case Number: 113170
    • United States
    • Supreme Court of Oklahoma
    • June 30, 2015
    ...Boll Weevil Eradication Organization, 1999 OK 1, ¶ 7, n. 22, 976 P.2d 1035, 1040). 8. See, e.g., Miller v. Fortune Insurance Co., 484 So.2d 1221, 1224 (Fla.1986) quoting 20 Am.Jur.2d Courts § 92 (1965) ("Of course, the trial court has jurisdiction to determine whether it has jurisdiction to......
  • Hoechst Celanese Corp v. Fry, Nos. 96-1211
    • United States
    • Court of Appeal of Florida (US)
    • March 19, 1997
    ...then was to completely divest the trial court of jurisdiction to act subsequent to the dismissal. See Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223-24 (Fla.1986); Page 1009 Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 68-69 (Fla.1978); 84 Lumber Co., 656 So.2d at 1298-99;......
  • Colucci v. Greenfield, No. 88-903
    • United States
    • Court of Appeal of Florida (US)
    • July 11, 1989
    ...of their cause of action, we reverse the Final Judgment entered subsequent to the voluntary dismissal. 1 Miller v. Fortune Ins. Co., 484 So.2d 1221 (Fla.1986); Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla.1978); Freeman v. Mintz, 523 So.2d 606 (Fla. 3d DCA), cause dismis......
  • Request a trial to view additional results
60 cases
  • Dutton v. City of Midwest City, 113,170.
    • United States
    • Supreme Court of Oklahoma
    • June 30, 2015
    ...Oklahoma Boll Weevil Eradication Organization, 1999 OK 1, ¶ 7, n. 22, 976 P.2d 1035, 1040 ).8 See, e.g., Miller v. Fortune Insurance Co., 484 So.2d 1221, 1224 (Fla.1986) quoting 20 Am.Jur.2d Courts § 92 (1965) (“Of course, the trial court has jurisdiction to determine whether it has jurisdi......
  • Dutton v. City of Midwest City, Case Number: 113170
    • United States
    • Supreme Court of Oklahoma
    • June 30, 2015
    ...Boll Weevil Eradication Organization, 1999 OK 1, ¶ 7, n. 22, 976 P.2d 1035, 1040). 8. See, e.g., Miller v. Fortune Insurance Co., 484 So.2d 1221, 1224 (Fla.1986) quoting 20 Am.Jur.2d Courts § 92 (1965) ("Of course, the trial court has jurisdiction to determine whether it has jurisdicti......
  • Hoechst Celanese Corp v. Fry, Nos. 96-1211
    • United States
    • Court of Appeal of Florida (US)
    • March 19, 1997
    ...then was to completely divest the trial court of jurisdiction to act subsequent to the dismissal. See Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223-24 (Fla.1986); Page 1009 Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 68-69 (Fla.1978); 84 Lumber Co., 656 So.2d at 1298-99;......
  • Colucci v. Greenfield, No. 88-903
    • United States
    • Court of Appeal of Florida (US)
    • July 11, 1989
    ...of their cause of action, we reverse the Final Judgment entered subsequent to the voluntary dismissal. 1 Miller v. Fortune Ins. Co., 484 So.2d 1221 (Fla.1986); Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla.1978); Freeman v. Mintz, 523 So.2d 606 (Fla. 3d DCA), cause dismis......
  • Request a trial to view additional results

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