24 Fla. L. Weekly Supp. 746a
Online Reference: FLWSUPP 2409MIRNInsurance — Relief from judgment — Motion to vacate notice of voluntary dismissal that was intended to dismiss suit only as to two of three plaintiffs, but mistakenly dismissed case as to all plaintiffs, is granted and clerk is ordered to reinstate case
XTREME CHIRO & REHAB, INC.; FOOT, ANKLE & LEG SPEC OF S. FL, INC.; AND ISO DIAGNOSTICS, INC. (a/a/o Hernandez, Mirna 2), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Case No. 10-20162 COCE 54. November 12, 2015. Stephen J. Zaccor, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Russell S. Kolodziej, House Counsel for United Automobile Company, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TOVACATE NOTICE OF VOLUNTARY DISMISSAL
THIS CAUSE came before the Court on November 10, 2015 upon Plaintiff’s Motion to Vacate Notice of Voluntary Dismissal. The court considered the motion, heard argument of counsel and was otherwise fully advised.
This is a PIP case, in which Plaintiff filed a Notice of Voluntary Dismissal on October 6, 2014. According to Plaintiff’s Motion to Vacate, “on October 14, 2014, Plaintiff realized that a clerical error had occurred inadvertently dismissing the entire suit rather than being by two of the three parties only (FOOT, ANKLE & LEG SPEC OF S. FL, INC. and ISO-DIAGNOSTICS, INC.” On October 14, 2014, Plaintiffs filed an Amended Notice of Voluntary Dismissal, in an effort to correct the clerical error and voluntarily dismiss only as to FOOT, ANKLE & LEG SPEC OF S. FL, INC. and ISO-DIAGNOSTICS, INC., with EXTREME CHIRO & REHAB, INC. continuing to maintain the suit. However, by that time, the clerk of the court’s docket had reflected this matter as “Dismissed, Settled or Disposed After Hearing” and “Disposition Entered” following the inadvertent dismissal of the entire action.
Rule 1.540(b), Fla.R.Civ.P. provides that “on motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.” Where relief under Rule 1.540(b)(1) is sought, the rule further provides that the motion shall be filed “not more than 1 year after the judgment, decree, order or proceeding was entered or taken.” Accordingly, the purpose of Rule 1.540(b) is to allow the trial court to provide relief in the event of a clerical error, such as the error in which the Plaintiff mistakenly filed a Notice of Voluntary Dismissal as to all claims, instead of just the claims of FOOT, ANKLE & LEG SPEC OF S. FL, INC. and ISO-DIAGNOSTICS, INC.
In opposing the Motion to Vacate Notice of Voluntary Dismissal, Defendant has cited the Florida Supreme Court’s decisions in Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla. 1978) and Miller v. Fortune Ins. Co., 484 So.2d 1221 (Fla. 1986). In Miller, the Court recognized that the only point for determination by the Randle Court “was whether a judgmental mistake by a lawyer permitted relief provided for by rule 1.540(b).” In Randle, the plaintiff had made a tactical decision to voluntarily dismiss suit without prejudice during trial, not realizing that the statute of limitations had run and barred filing a new cause of action. Accordingly, the Miller Court distinguished its earlier decision in Randle, as follows:
“the true rationale in Randle, the underlying reasoning which guided or should have guided this Court’s action, was that judgmental error by the plaintiff is not the kind of mistake, inadvertence, or excusable neglect contemplated by rule 1.540(b). The plaintiff bears the risk of judgmental decisions; the courts will not relieve parties of their tactical mistakes.”
Conversely, in Miller, where the attorney had filed a voluntary dismissal “with prejudice” and later sought relief under Rule 1.540(b), asserting “secretarial error” resulting in the words “with prejudice” instead of “without prejudice”, the Court held that the limited jurisdiction conferred on the courts by rule 1.540(b) to correct errors includes the power to correct clerical substantive errors in a voluntary notice of dismissal. The Miller Court concluded that the relief sought as a result of the clerical error in substituting “with prejudice” for “without prejudice” was not the type of “tactical mistake” or “judgmental decision” that had been made in the Randle case, but rather, the kind of “mistake, inadvertence or excusable neglect contemplated by rule 1.540(b).”
In making the determination that the movant is entitled to the relief requested, this Court similarly concludes that the relief sought as a result of the filing of a Notice of Voluntary Dismissal by all three Plaintiffs, instead of by two of the three Plaintiffs, is not a “tactical mistake” or “judgmental decision”, such as was the case in Randle, but rather, the kind of “mistake, inadvertence or excusable neglect” for which Miller expressly provides that the Plaintiff is entitled to relief under rule 1.540(b). Accordingly, it is:
ORDERED AND ADJUDGED that Plaintiffs’ Motion to Vacate Notice of Voluntary Dismissal is hereby GRANTED, and the Clerk of the Court is hereby directed to reinstate/reopen this Case, with XTREME CHIRO & REHAB, INC. as the proper and sole Plaintiff who will be prosecuting this lawsuit against the Defendant UNITED AUTOMOBILE INSURANCE COMPANY.
