SHANA TISSIER, AS ADMINISTRATOR AD LITEM OF THE ESTATE OF KATHLEEN D. COMSTOCK, APPELLANT,
v.
RAYMOND F. TISSIER AND E*TRADE SECURITIES, LLC, APPELLEES
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Appellant sought relief from a voluntary dismissal with prejudice of her deceased mother's lawsuit, alleging the dismissal was obtained through coercion and duress by the defendant son. The trial court denied the motion, but the appellate court reversed, holding that relief from a voluntary dismissal with prejudice is available under Florida Rule of Civil Procedure 1.540(b) when grounds such as fraud or misconduct are alleged.
Yes. A trial court has jurisdiction to consider a motion for relief from a voluntary dismissal with prejudice under Rule 1.540(b), and may grant such relief based on grounds including fraud, misrepresentation, or other misconduct of an adverse party if sufficiently alleged and established at an evidentiary hearing.
[1] A voluntary dismissal with prejudice may be set aside under Florida Rule of Civil Procedure 1.540(b) if the grounds for relief are sufficiently alleged and established.
[2] A trial court has jurisdiction to consider a motion filed under Florida Rule of Civil Procedure 1.540(b) seeking relief from a voluntary dismissal with prejudice, even if…
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Join FLexlaw to unlock all legal intelligence“Florida's case law is replete with examples that almost exclusively show plaintiffs invoking rule 1.540(b) to seek relief and set aside voluntary dismissals inadvertently taken with prejudice.”
Establishes that relief from voluntary dismissals with prejudice under Rule 1.540(b) is a recognized and commonly used remedy in Florida law.
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Join FLexlaw to unlock all legal intelligenceA lawsuit was dismissed pursuant to a joint stipulation for voluntary dismissal with prejudice. After the plaintiff died, her granddaughter (Appellant…
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This is an appeal from a non-final order denying Appellant ⅛ motion for relief from judgment. See Fla. R. App. P. 9.130(a)(5). The lawsuit giving rise to the instant controversy was dismissed pursuant to a joint stipulation for voluntary dismissal with prejudice. After the plaintiff died, Appellant, the plaintiffs granddaughter, filed a Motion to Appoint Administrator ad Litem and Reinstate Lawsuit alleging that Appel-lee, the defendant (and plaintiffs son), had obtained the stipulation for dismissal from the ill and vulnerable plaintiff by coercion and duress. Attached to the motion was an affidavit from the plaintiffs former attorney attesting to the supporting facts. The trial court denied the motion, reasoning that, “this case was dismissed by Joint Stipulation for Dismissal with Prejudice ... and cannot now be reinstated.” (Emphasis in original.) This was error.
Although Appellant did not cite to Florida Rule of Civil Procedure 1.540(b) in her motion, the relief she sought — relief from a voluntary dismissal with prejudice — is available under the rule. See Pino v. Bank of New York, 121 So.3d 23, 35 (Fla.2013) (“Florida’s case law is replete with examples that almost exclusively show plaintiffs invoking rule 1.540(b) to seek relief and set aside voluntary dismissals inadvertently taken with prejudice.”); see also Navarro v. Castro, 110 So.3d 499, 501 (Fla. 4th DCA 2013) (holding trial court had jurisdiction to consider motion filed under rule 1.540(b) seeking relief from voluntary dismissal with prejudice based on mistake); Diaz, Rem & Targ, LLP v. Bird Wingate, LLC II, 66 So.3d 974, 976 (Fla. 3d DCA 2011) (affirming order vacating voluntary dismissal with prejudice and converting it to dismissal without prejudice). Moreover, if sufficiently alleged in the motion and established at an evidentia-ry hearing, a court may grant relief on any of the grounds provided in rule 1.540(b). See Shampaine Indus., Inc. v. S. Broward Hosp. Dist., 411 So.2d 364, 368 (Fla. 4th DCA 1982); Fla. R. Civ. P. 1.540(b) (permitting relief based on, inter alia, fraud, misrepresentation, “or other misconduct of an adverse party”).
Accordingly, we reverse the order denying Appellant’s motion, and remand to the trial court to determine whether the mo*449tion is facially sufficient, and if so, to hold an evidentiary hearing. See Southern Bell Tel. & Tel. Co. v. Welden, 488 So.2d 487, 489 (Fla. 1st DCA 1986) (“[W]here the moving party’s allegations raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.”).
REVERSED and REMANDED with directions.
LEWIS, C.J., MARSTILLER, and OSTERHAUS, JJ., concur.
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- Pino v. The Bank OF NEW York, 121 So. 3d 23 (Fla. 2013)
- Shampaine Indus., Inc. v. S. Broward Hosp. Dist., 411 So. 2d 364 (Fla. 4th DCA 1982)
- S. Bell Tel. & Tel. Co. v. Welden, 483 So. 2d 487 (Fla. 1st DCA 1986)
- Diaz, Reus & Targ, LLP v. Bird Wingate, 66 So. 3d 974 (Fla. 3d DCA 2011)
- Navarro v. Castro, 110 So. 3d 499 (Fla. 4th DCA 2013)