Randle Eastern Ambulance Service, Inc. v. Vasta, 76--2215
| Decision Date | 26 April 1977 |
| Docket Number | No. 76--2215,76--2215 |
| Parties | RANDLE EASTERN AMBULANCE SERVICE, INC., a Florida. Corporation, Petitioner, v. Elena VASTA, as Administratrix of the Estate of Louis Vasta, Deceased, for the benefit of Elena Vasta, Respondent. |
| Court | Florida District Court of Appeals |
Stephens & Schwartz, Richard M. Gale, Miami, for petitioner.
Wolfson, Diamond, Logan & Edge, Miami Beach, Podhurst, Orseck & Parks, Joe N. Unger, Miami, for respondent.
Before PEARSON, HAVERFIELD and HUBBART, JJ.
We are presented with a petition for writ of certiorari to review an action of the trial judge taken pursuant to Fla.R.Civ.P. 1.540. The final judgment set aside was a voluntary dismissal entered in open court pursuant to Fla.R.Civ.P. 1.420(a)(1)(i). The petitioner urges that the trial court was without jurisdiction to reinstate the action where the plaintiff had exercised her absolute right to voluntarily dismiss the cause by entering into the record her notice of dismissal. Secondly, the petitioner urges that the trial court departed from the essential requirements of law by a clear abuse of its discretion in finding good cause for the reinstatement where the mistake claimed was not due to inadvertence or excusable neglect, but due to a mistake of the application of the law to the facts.
The order under review was entered under circumstances as follows: Plaintiff, who is the respondent, brought an action to recover for alleged wrongful death against Randle Eastern Ambulance Service, Inc., the petitioner, urging negligence in the performance of the ambulance services. At the trial, the plaintiff attempted to introduce evidence that the ambulance service was negligent in that it arrived late in response to the call. The trial court ruled that this evidence was not admissible under the allegations of the complaint, whereupon, the plaintiff took a voluntary dismissal by means of the following announcement:
Thereafter, almost three months later, plaintiff filed a 'Motion For Relief From Judgment of Voluntary Dismissal.' In the motion, the plaintiff alleged that prior to the voluntary dismissal, the death statute had run in the cause and that it was now too late to refile the action and that the voluntary dismissal had been taken as a result of mistake, inadvertence or excusable neglect. The trial court granted the motion for relief upon the following finding:
'The above referenced...
To continue reading
Request your trial
-
Piper Aircraft Corp. v. Prescott
...was a "proceeding" which may be reached by a claim of mistake under Fla.R.Civ.P. 1.540(b), Randle-Eastern Ambulance Service, Inc. v. Vasta, 345 So.2d 1084, 1085 (Fla. 3rd DCA 1977). The Supreme court disagreed holding that no "proceeding" existed upon which Rule 1.540(b) could operate and t......
-
Rosenberg v. Rosenberg, 83-1174
...of the motion to vacate. Schwab & Co., Inc., v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978); Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977). However, we reverse the order holding the appellant in contempt and ordering his incarceration. Where perio......
-
Schwab & Co., Inc. v. Breezy Bay, Inc.
...order to reverse a judge's ruling thereunder, there must be a showing of a gross abuse of discretion. Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977); Chamberlin v. Mid-Century Insurance Company, 350 So.2d 364 (Fla. 2d DCA After reviewing the record in the......
-
Tinsley v. McDonald
...jurisdiction to proceed with the cause, it should be terminated without further proceedings. See Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977), where this court accepted a petition for a writ of common law certiorari, with the case being subsequently qua......