CITY OF SUNRISE, FLORIDA (FORMERLY CITY OF SUNRISE GOLF VILLAGE, FLORIDA), A MUNICIPAL CORPORATION AND JOHN LOMELO, JR., APPELLANTS,
v.
FLORIDA STATE BOARD OF PUBLIC INSTRUCTION AND BOARD OF PUBLIC INSTRUCTION OF BROWARD COUNTY, FLORIDA, APPELLEES
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The City of Sunrise and John Lomelo, Jr. appealed a final judgment entered against them for failing to file an amended complaint within a court-ordered 30-day period. The court held that the plaintiffs had the right to voluntarily dismiss the action during that period pursuant to applicable rules, making the final judgment improper.
Plaintiffs had the right to voluntarily dismiss the action within the 30-day period by filing and serving a notice of dismissal pursuant to Rule 1.420(a). The final judgment of June 9, 1972 was improperly entered because the order on the motion for rehearing effectively converted the dismissal into an order with leave to amend, giving plaintiffs the right to dismiss during that period.
[1] A trial court's order vacating a final judgment and granting leave to amend the complaint restores the case to a procedural posture where a plaintiff may voluntarily dism…
[2] A plaintiff may voluntarily dismiss an action by filing a notice of dismissal within the time allowed for amending a complaint after the trial court has vacated a final j…
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Join FLexlaw to unlock all legal intelligence“after an order of the trial court had been entered dismissing an amended complaint with leave to file another amended complaint, the plaintiff was entitled, within the time allowed for amending the complaint, to voluntarily dismiss the action by filing and serving a notice of dismissal pursuant to the Rule 1.420(a), RCP”
The court's statement of the controlling rule from Hibbard v. State Road Department of Florida, establishing that plaintiffs have the right to dismiss during the amendment period.
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed an amended complaint on July 24, 1970. Defendants filed a motion to dismiss, which was granted on February 17, 1972, with final judgm…
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The plaintiffs filed an amended complaint in this case on 24 July 1970. A motion to dismiss was filed by the defendants. On 17 February 1972 the motion to dismiss was granted and a final judgment was entered by the trial court dismissing the complaint with prejudice. Thereafter, the plaintiffs filed a timely motion for rehearing pursuant to Rule 1.530, RCP, 31 F.S.A. On 18 April 1972 the trial court entered an order on the motion. The order provided:
“ . . . that the Order and Final Judgment of the Court entered on February 17, 1972, be and the same is hereby vacated and set aside, and Plaintiffs shall have thirty (30) days from the date hereof in which to file an Amended Complaint, failing which Final Judgment will be entered in favor of Defendants.”
Thereafter but within the 30-day period, the plaintiffs filed and served a notice of voluntary dismissal pursuant to Rule 1.420 (a)(1), RCP, 30 F.S.A. On 9 June 1972, the trial court entered a final judgment against plaintiffs on the ground that plaintiffs failed to file within the 30-day period a further amended complaint. The appeal is from that judgment.
We hold that the final judgment of June 9, 1972 was improperly entered. The order on the motion for rehearing in effect converted the “final judgment” of 17 February *111972 into an order dismissing the amended complaint with 30 days leave to file a second amended complaint. The order on the motion for rehearing, therefore, put the case in the same procedural posture as that considered by the Florida Supreme Court in Hibbard v. State Road Department of Florida, Fla.1969, 225 So.2d 901. There the Florida Supreme Court held that after an order of the trial court had been entered dismissing an amended complaint with leave to file another amended complaint, the plaintiff was entitled, within the time allowed for amending the complaint, to voluntarily dismiss the action by filing and serving a notice of dismissal pursuant to the Rule 1.420(a), RCP. In our opinion, the same result should follow in the present case.
For the foregoing reasons, the final judgment from which this appeal has been taken is vacated and the cause remanded.
CROSS and OWEN, JJ., concur.
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Citator
Cited By
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Wiggins v. Pipkin, 853 F.2d 841 (11th Cir. 1988)…motion for reconsideration did not render the order interlocutory. If, in fact, the court had acted on the motion for reconsideration, it might have vacated the previous judgment, see, e.g., City of Sunrise v. Florida State Bd. of Pub. Instruction, 273 So. 2d 10, 10-11 (Fla.App.1973), but that was not done here. Thus, the final order of dismissal remained unaffected. The judgment of dismissal for lack of jurisdiction entered by the Circuit Court for Dade County was a final judgment which bars relitigation…
Authorities Cited
- Elinor Hibbard v. State Rd. Dep't OF Fla., 225 So. 2d 901 (Fla. 1969)