ATLANTIC ASSOCIATES, INC., DAVID DIAMOND AND GARY SHER, APPELLANTS,
v.
CESAR LADUZINSKI, APPELLEE
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Appellee sought to amend a voluntary dismissal that was inadvertently filed "with prejudice" to reflect the parties' actual agreement for a dismissal "without prejudice." The trial court granted the amendment under Florida Rule 1.540(b), and the appellate court affirmed, holding that Rule 1.540 permits correction of mistakes and errors in judgments at any time.
Yes. Rule 1.540(b) permits courts to correct mistakes and errors in judgments at any time when a party demonstrates the grounds set forth in the rule, including inadvertence and error. The trial court properly exercised its discretion in amending the dismissal language where appellee demonstrated that the miswording was inadvertent.
[1] A trial court may grant relief from a voluntary dismissal order based on mistake, inadvertence, surprise, or excusable neglect under Rule 1.540(b), Florida Rules of Civil…
[2] A trial court does not abuse its discretion by allowing an amendment to a voluntary dismissal to correct inadvertent error in its wording.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 1.540(b), Florida Rules of Civil Procedure, allows for relief from judgments, decrees or orders when a party can show that there was mistake, inadvertence, surprise, or excusable neglect.”
Establishes the legal standard under which the trial court amended the dismissal
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Join FLexlaw to unlock all legal intelligenceAppellee filed suit against appellants for damages based on misrepresentations. Appellants filed a counterclaim seeking attorneys' fees. Both parties …
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HENDRY, Judge.
The appellee, plaintiff below, filed suit against the appellants for damages alleged to be the result of appellants’ misrepresentations. Appellants filed a “counterclaim,” seeking attorneys’ fees on the ground that appellee’s complaint raised no justiciable issue of law or fact. Before the case went to trial, counsel for both parties agreed to take a voluntary dismissal without prejudice of the complaint and the counterclaim. The notices of voluntary dismissal filed by the parties actually dismissed the complaint with prejudice. Appellee later moved to amend the wording of the voluntary dismissal on the bases of inadvertence and mistake.
The trial court found that there was inadvertence and error and allowed an amendment to reflect that this was a voluntary dismissal without prejudice.
We affirm.
Rule 1.540(b), Florida Rules of Civil Procedure, allows for relief from judgments, decrees or orders when a party can show that there was mistake, inadvertence, surprise, or excusable neglect. The trial court specifically found that there was inadvertence and error in the taking of the voluntary dismissal with prejudice and we cannot conclude that he abused his discretion in so doing. Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977); Singh v. Tolz, 380 So. 2d 1326 (Fla. 4th DCA 1980); Kuykendall v. Kuykendall, 301 So. 2d 466 (Fla. 1st DCA 1974).
Appellee here is not asking the trial court to reinstate his cause of action after taking a voluntary dismissal. Rather, he is asking that language inadvertently included in the voluntary dismissal be expunged.
Thus, it is not necessary to reach the jurisdictional issues raised in Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978). Since Rule 1.540 allows a court to correct mistakes and errors at any time, Rule 1.540 may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out in the Rule. Shampaine Industries, Inc. v. South Broward Hospital District, 411 So. 2d 364 (Fla. 4th DCA 1982); McKibbin v. Fujarek, 385 So. 2d 724 (Fla. 4th DCA 1980). Since the appellee demonstrated that the miswording of the notices of voluntary dismissal was the result of inadvertence and error, we conclude that the trial court properly allowed the amendment.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978)
- Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla. 1977)
- Shampaine Indus., Inc. v. S. Broward Hosp. Dist., 411 So. 2d 364 (Fla. 4th DCA 1982)
- McKIBBIN v. Fujarek, 385 So. 2d 724 (Fla. 4th DCA 1980)
- Wiladean R. Kuykendall v. Ervin G. Kuykendall, 301 So. 2d 466 (Fla. 1st DCA 1974)
- Nanak Singh v. Marika Tolz, 380 So. 2d 1326 (Fla. 4th DCA 1980)