GROELLE & SALMON FAVORABLE RULINGS

 

TRIAL COURT FINDS STREMS’ ATTEMPT TO WITHDRAW ITS NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE INSUFFICIENT

Meghan Wilson, Partner – West Palm Beach, East Office

Congratulations to Homeowners Choice Property and Casualty Insurance Company for its dismissal of a lawsuit filed by The Strems Law Firm in the Circuit Court of Palm Beach County. In the case of William Feliciano v. Homeowners Choice Property & Casualty Insurance Company (502017CA001539XXXXMB), The Strems Law Firm filed a breach of contract action against the carrier for unpaid funds as a result of a kitchen leak that occurred in 2014 at Plaintiff’s dwelling. The lawsuit was filed in 2017, and was scheduled to go to trial on a docket beginning in July of 2019. On May 3, 2019, shortly after Homeowners Choice deposed Mr. Feliciano and obtained information that weakened his case, Plaintiff’s counsel filed a Notice of Voluntary Dismissal with Prejudice in this case. Three days later, The Strems Law Firm filed a “Notice of Withdrawing Plaintiff’s Voluntary Dismissal.” This was improper under the rules, so in response, defense counsel filed a Motion to Close Case for Lack of Jurisdiction. Attorney Meghan Wilson of Groelle & Salmon, P.A. argued the motion on July 11, 2019. Ms. Wilson relied on the case of Miller v. Fortune Insurance Company, 484 So. 2d 1221, 1223 (Fla. 1986), in which the Florida Supreme Court found that notice of dismissal with prejudice terminates a trial court’s jurisdiction with “absolute finality.” Thus, the case was closed, as the court had no jurisdiction unless and until the Plaintiff could establish an exception under Florida Rule of Civil Procedure 1.540. Since the Plaintiff improperly attempted to withdraw the voluntary dismissal with prejudice, and did not establish that it was filed due to mistake, inadvertence, excusable neglect, or surprise, Judge Lisa Small ruled in the carrier’s favor, found she was divested of jurisdiction over the case, and directed the clerk to close the case file.

Approximately 3 months later, The Strems Law Firm filed a “Motion to Vacate this Court’s Order of Dismissal.” Plaintiff’s counsel generally alleged that due to a clerical error, the Notice of Voluntary Dismissal with Prejudice was filed in this case. Plaintiff’s counsel did not set forth specific information regarding the circumstances leading to the clerical error, and did not file any supporting affidavits showing there had been a mistake, inadvertence, excusable neglect, or surprise. Counsel for Homeowners Choice filed a response in opposition, stating that the motion was insufficient under Rule 1.540 and should be denied.

The Strems Law Firm waited to have the issue heard until May 27, 2020. Attorney Wilson argued on behalf of Homeowners Choice and presented binding case law from the Fourth DCA, which differentiated between what was sufficient and what was insufficient in pleading for relief under Rule 1.540. In Davidson v. Lenglen Condo Association, 602 So. 2d 687 (Fla. 4th DCA 1992), the Fourth DCA found that a motion seeking relief under rule 1.540 was insufficient where no affidavits or specific information were provided to the court. In that instance (similar to the issues in the Feliciano case), the Plaintiff merely stated that the voluntary dismissal was “mistakenly filed.” The Plaintiff subsequently sought a re-hearing from the trial court, and attached an affidavit with specific facts. The Fourth DCA found that the information included in the request for re-hearing was sufficient to obtain relief under Rule 1.540.

Judge Small was persuaded by the case law and the arguments made, and found that the motion filed by The Strems Law Firm was facially insufficient. It was unclear from the face of the motion whether the voluntary dismissal with prejudice was filed by mistake or whether it was a tactical decision made by The Strems Law Firm (in which case, they could not obtain relief under Rule 1.540). Judge Small directed the clerk of court to re-close the case file. Judge Small commented on the length of time that The Strems Law Firm had to file support for its motion to vacate the dismissal of the action, but they failed to provide any affidavits or other evidence that the filing of the dismissal was due to mistake, inadvertence, excusable neglect, or surprise.