Shampaine Industries, Inc. v. South Broward Hospital Dist.

• Decision Date: 31 March 1982
• Docket Number: No. 80-325,80-325
• Citation: 411 So.2d 364
• Parties: SHAMPAINE INDUSTRIES, INC., and Affiliated Hospital Products, Inc., Appellants, v. SOUTH BROWARD HOSPITAL DISTRICT d/b/a Memorial Hospital of Hollywood, Appellee.
• Court: Florida District Court of Appeals

Page 364

411 So.2d 364

SHAMPAINE INDUSTRIES, INC., and Affiliated Hospital Products, Inc., Appellants, v. SOUTH BROWARD HOSPITAL DISTRICT d/b/a Memorial Hospital of Hollywood, Appellee.

No. 80-325.

District Court of Appeal of Florida, Fourth District.

March 31, 1982.

K. Jack Breiden of Pomeroy, Betts, Pomeroy & Moses, Fort Lauderdale, and Larry Klein, West Palm Beach, for appellants.

Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellee.

OPINION ON REHEARING

ANSTEAD, Judge.

The issue presented here is whether Rule 1.540(b) Florida Rules of Civil Procedure, may be used to afford relief when a party asserts that a voluntary dismissal with prejudice was filed by reason of mistake, inadvertence or excusable neglect. ¹

The trial judge here determined that he had jurisdiction under Rule 1.540(b) to afford relief to the appellee who alleged that the words "with prejudice" were inadvertently included in an intentionally filed voluntary dismissal. Appellant contends that the Florida Supreme Court's opinion in Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), precludes such a holding. We disagree.

We have previously stated that a voluntary dismissal does not divest the trial court of jurisdiction to grant relief by operation of Rule 1.540:

We initially reject defendants' (petitioners') argument that the trial court exceeded its jurisdiction because the original dismissal divested the court of jurisdiction. Although there is no doubt that a voluntary dismissal under Rule 1.420(a), Fla.R.Civ.P., divests the court of jurisdiction to entertain a later request for reinstatement of a cause of action, Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, 371 So.2d 492 (Fla. 4th DCA 1979); Randle-Eastern Ambulance Services v. Vasta, 360 So.2d 68 (Fla.1978); Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1971), Rule 1.540(a) allows the court to correct clerical mistakes, and errors from oversight or omission, in any part of the record at any time. The Rule provides:

Rule 1.540. Relief from Judgment, Decrees, or Orders

(a) Clerical Mistakes. Clerical mistakes in judgments, decrees or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

Thus, we are not concerned with the court's jurisdiction, but rather the extent to which this Rule may be applied.

McKibbin v. Fujarek, 385 So.2d 724, 725 (Fla. 4th DCA 1980). ² Under this view a trial court does have jurisdiction to grant relief assuming the existence of circumstances contemplated by the provisions of the rule.

Despite this rather clear cut statement on the jurisdictional issue we agree that there is certain language in Randle ³ and our own interpretation of Randle in SUN FIRST NATIONAL BANK OF DELRAY BEACH V. GREEN CRANE & CONCRETE SERVICES, INC., 371 SO.2D 492 (FLA. 4TH DCA 1979)⁴, cert. denied 383 So.2d 1195 (Fla.1980), which we acknowledge appears to indicate a contrary conclusion. Because of the difficulty we have had in construing Randle as evidenced by the conflict in views expressed in our previous opinions in McKibben and Sun First National Bank, supra, and our own view of the importance of this issue to litigants we are certifying the issue to the Supreme Court.

Some review of the pertinent cases is necessary to explain the reasons for our ruling today. In Randle the plaintiff voluntarily dismissed her wrongful death action without prejudice as a strategic response to the trial court's refusal to admit certain evidence, and in the mistaken belief that the statute of limitations had not run and the case could be refiled. "The critical issue," as stated by the Supreme Court, was "whether a plaintiff's volitional dismissal divests a trial court of jurisdiction to entertain a later request to be relieved from the dismissal," 360 So.2d at 68, 69. In holding that the trial court did not have jurisdiction to grant relief in such a situation, the court stated that "it has never been the role of the trial courts of this state to relieve attorneys of their tactical mistakes ... and nothing in Rule 1.540(b) suggests otherwise." The court's careful use of the qualifying phrases "volitional dismissal" and "tactical mistakes" strongly suggests to us an intention to withhold Rule 1.540(b) relief only in those situations in which, as was the case in Randle, a voluntary dismissal is entered deliberately and as the result of attorney miscalculation. In the present case appellee's voluntary dismissal with prejudice was found by the trial court on evidence virtually undisputed, to have been entered as the result of secretarial error, not attorney miscalculation. In our view a dismissal with prejudice found to have been entered as the result of secretarial error is simply not a "volitional dismissal" as we understand the term, and we do not believe it was the intention of the Randle court to hold that trial courts are divested of jurisdiction to grant relief in such situations.

In addition to relying on Randle in Sun First National Bank, this court also relied upon its earlier decision in Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1970). The Florida Supreme Court assumed jurisdiction in Randle on the basis that the Third District's disposition of that case, Randle-Eastern Ambulance Service v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977) was in conflict with Rich, a case which the Supreme Court then proceeded to approve. In Rich, the plaintiff voluntarily dismissed its conversion action without prejudice as a tactical response to the trial court's apparent disinclination to admit certain evidence, and in the evidently mistaken belief that the case could be refiled. The factual situation in Rich was thus quite similar to that in Randle; therefore, the factors already cited as distinguishing Randle from the decision in the case at bar also apply with regard to Rich, and we see nothing in Rich inconsistent with our disposition of the present case.

It is possible to distinguish Randle, Rich, and Sun First National Bank 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 Sun First National Bank, 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...