VOLUNTARY DISMISSALS
AND JURISDICTION
27TH Annual View from the Bench
May 18, 2012
Judge Sandy Karlan
• Query: Does the Court have jurisdiction to
reinstate a dissolution, or other action, after a
party has voluntarily dismissed the case?
• The short and long answer is NO!
• The only time a party may seek to reinstate a
case is by motion for good cause shown when
the action has been dismissed for failure to
prosecute; Fla.R.Civ.P. 1.420
• Otherwise, once a case is voluntarily
dismissed, the court loses jurisdiction over the
the lawsuit and cannot reopen the matter.
• According to Randle-Eastern Ambulance
Service, Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978)
• The right to dismiss one’s own lawsuit during
the course of trial is guaranteed by Rule
1.420(a), endowing a plaintiff with unilateral
authority to block action favorable to a
defendant which the trial judge might be
disposed to approve.
• The effect is to remove completely from the
court’s consideration the power to enter an
order, equivalent in all respects to a deprivation
of ‘jurisdiction’. If the trial judge loses the ability
to exercise judicial discretion or to adjudicate the
cause in any way, it follows that he has no
jurisdiction to reinstate a dismissed proceeding.
The policy reasons for this consequence support
its apparent rigidity
• See, Hayden v. Hayden, 373 So.2d 436 (Fla. 3d
DCA 1979)
• The Court doesn’t even have jurisdiction to
consider a Motion to reactivate a dismissed
action and set aside the Notice of Voluntary
Dismissal.
• Miller v. Fortune Ins. Co., 484 So.2d 1221 Fla.
• 1986)
• Anderson v. Lovejoy, 354 So.2d 951 (Fla. 1st
DCA 1978)
Serious Repercussions
• Wife filed for dissolution; parties had one
child.
• 1 year after filing a hearing was held by GM
• 10 days after GM filed a report, Wife filed
voluntary dismissal.
• 20 days after voluntary dismissal, Judge
entered Final Judgment of Dissolution.
• 1 year later, FH filed to modify timesharing
OOPS!
• Trial Court granted modification
• On appeal, Court held that voluntary dismissal
filed before the case was submitted to the
court, the Court did not have jurisdiction to
enter the FJ of DM
• Thus, the FJ of DM and all subsequent orders
were void ab initio and therefore vacated
THE PARTIES WERE STILL MARRIED
Kelly v. Colston, 977 So.2d 692(Fla.1stDCA 2008)
HELP?
• The voluntary dismissal does not preclude the
court from correcting clerical mistakes and
errors from oversight or omission. McKibbin v.
Fujarek, 385 So. 2d 724 (Fla. 4th DCA 1980)
• A Court may retain jurisdiction to hear certain
issues such as attorneys fees at a later date.
Hayden, at 437-38
What about 1.540 Motions?
• Must file motion to set aside voluntary
dismissal under this rule within one year and
allege mistake, inadvertence, etc.
• But does a judgmental mistake by a party
(thought we could reconcile) suffice? See,
Miller v. Fortune Ins. Co., 484 So.2d 1221
(Fla.1986)
• Parties filed Stipulation for Dismissal
w/prejudice in 2003
• Plaintiff filed for Relief in 2005 and Court set
aside the dismissal
• Reversed on appeal: if it was a voluntary
dismissal the Court lost jurisdiction; if it was
set aside based upon 1.540, it was untimely
• Rabello V. Alonso, 927 So.2d 45 (Fla.3d DCA
2006)
•BE CAREFUL
•QUESTIONS?