AMBASSADOR INSURANCE COMPANY, A FOREIGN CORPORATION, PETITIONER,
v.
HIGHLANDS GENERAL HOSPITAL ET AL., RESPONDENTS
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Ambassador Insurance Company, a foreign corporation, sought certiorari to overturn a trial court's order striking its notice of voluntary dismissal in a contract action. The appellate court held that because the initial dismissal was interlocutory (without prejudice and allowing time to cure defects), Ambassador retained the absolute right to file a voluntary dismissal, and the trial court exceeded its jurisdiction by striking it.
The trial court lacked authority to strike Ambassador's notice of voluntary dismissal. Because the original dismissal order was interlocutory—not final—and the case remained pending, Ambassador retained the absolute right to file a voluntary dismissal.
[1] A voluntary dismissal filed by a plaintiff is permissible when the prior dismissal order was interlocutory and did not constitute a final judgment.
[2] A court order dismissing a complaint with leave to amend or qualify within a specified time is an interlocutory order.
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Join FLexlaw to unlock all legal intelligence“The order of dismissal which granted Ambassador sixty days to qualify with the Department of State was clearly an interlocutory order.”
Establishes that the original dismissal was not final, preserving the case's pending status and Ambassador's rights.
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Join FLexlaw to unlock all legal intelligenceAmbassador Insurance Company, an unregistered foreign corporation, sued Highlands General Hospital to recover insurance premiums. The hospital moved t…
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GRIMES, Chief Judge.
In this petition for certiorari and prohibition Ambassador Insurance Company attacks the trial court’s entry of an order striking its' notice of voluntary dismissal.
Ambassador, a foreign corporation, sued to recover premiums on an insurance policy issued to the Highlands General Hospital. The hospital moved to dismiss on the ground that Ambassador was doing business in Florida but had not registered with the Department of State.
On September 12,1977, the court entered an order dismissing the complaint on this ground pursuant to Section 607.354, Florida Statutes (1977), but granted Ambassador sixty days within which to qualify with the Department of State as a foreign corporation authorized to transact business within the state. The court entered a supplemental order on September 21, 1977, which made clear that its prior dismissal was without prejudice. No further action was taken in the case until October 26, 1979, when Ambassador filed a notice of voluntary dismissal without prejudice. Thereafter, upon motion to strike filed by the hospital, the court entered an order striking the voluntary dismissal.
Ambassador contends that the court had no authority to strike the voluntary dismissal. Ambassador’s concern over the adverse effect of this order has to do with a case involving the same issue presently pending before the Fifth Circuit Court of Appeals in which the hospital is apparently arguing that the federal courts are bound by the dismissal of Ambassador’s state court action.
While there are no decisions precisely on point, the case of Gate City, Inc. v. Arnold Construction Co., 243 So. 2d 637 (Fla.4th DCA 1971), is analogous. There, the court had dismissed the complaint with leave to amend within a stated time. When the plaintiff did not file an amended complaint prior to the expiration of the time, one of the two defendants moved for summary judgment. Plaintiff then filed an amended complaint without naming this particular defendant but still praying for a lien on its land. A few minutes prior to the hearing on the motion for summary judgment the plaintiff filed a notice of voluntary dismissal as to that defendant.
Nevertheless, the court went on to grant summary judgment in the defendant’s favor.
On appeal our sister court reversed, reasoning that because the order of dismissal granted leave to amend, it was an interlocutory order.
Therefore, the plaintiff could still file a voluntary dismissal. See also Hancock v. Piper, 186 So. 2d 489 (Fla.1966).
The order of dismissal which granted Ambassador sixty days to qualify with the Department of State was clearly an inter locutory order. Even though Ambassador made no showing that it had ever taken the steps necessary to qualify, the court never entered an order of final dismissal. Consequently, the case remained pending, and Ambassador had the absolute right to file a voluntary dismissal. Fears v. Lunsford, 314 So. 2d 578 (Fla.1975).
The court’s order striking the notice of voluntary dismissal constituted an act in excess of its jurisdiction and a departure from the essential requirements of law. Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, Inc., 371 So. 2d 492 (Fla.4th DCA 1979). Accordingly, we grant the petition for a writ of certiorari and quash the order. HOBSON and CAMPBELL, JJ., concur.
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State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981)…cumstantial, then whether it has carried its burden of excluding all reasonable hypotheses of innocence must be decided at the close of all the evidence. To withstand a motion to dismiss, the State need show only a prima facie case. State v. Cramer, 383 So. 2d 254 (Fla.2d DCA 1980). See also Ritter v. State, 390 So. 2d 168 (Fla. 5th DCA 1980). The State orally traversed the key allegation of defendant’s motion, and there was no objection to the form of the traverse. Although the rule undoubtedly requires the…
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Szteinbaum v. Kaes Inversiones y Valores, 476 So. 2d 247 (Fla. 3d DCA 1985)…d reports and taxes given leave to do so and would be dismissed only if the errant corporation failed to file its overdue reports and pay its back taxes within a reasonable period of time); Ambassador Insurance Company v. Highlands General Hospital, 383 So. 2d 254 (Fla. 2d DCA 1980) (corporation doing business in Florida which was not registered with the Department of State granted leave to qualify with the Department rather than being dismissed out of court); Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So…
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Turner v. State, 388 So. 2d 254 (Fla. 1st DCA 1980)…t comply with Fla.R.Crim.P. 3.190(d). Although the state attorney had apparently not filed a written traverse, he traversed orally at the hearing, and the appellant did not object. Appellant waived objection to the state’s traverse. State v. Cramer, 383 So. 2d 254 (Fla.2d DCA 1980). Moreover, the oral traverse, stating that appellant had sufficient knowledge and control of the marijuana in the truck based on his statements in the presence of the inspector and the officer, was enough to imply knowledge suffici…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fears v. Muriel Booth Lunsford & the Ins. Co. of N. Am., 314 So. 2d 578 (Fla. 1975)
- Hancock v. Wilford J. Piper and Alida Piper, 186 So. 2d 489 (Fla. 1966)
- SUN First Nat'l Bank OF Delray Beach v. Green Crane & Concrete Servs., Inc., 371 So. 2d 492 (Fla. 4th DCA 1979)
- Gate City v. Arnold Constr. Co., 243 So. 2d 637 (Fla. 4th DCA 1971)