Bender v. First Fidelity Sav. & Loan Ass'n

463 So. 2d 445, 10 Fla. L. Weekly 312

• Court: District Court of Appeal of Florida
• Decided: February 6, 1985
• Docket: 84-2646
• Status: Published

Opinion

463 So.2d 445 (1985)

Andrew BENDER, Petitioner,
v.
FIRST FIDELITY SAVINGS AND LOAN ASSOCIATION OF WINTER PARK f/k/a First Federal Savings and Loan Association of Martin County, Etc., Respondent.

No. 84-2646.

District Court of Appeal of Florida, Fourth District.

February 6, 1985.

John W. Case, Lauderdale By The Sea, for petitioner.

Robert L. Lord, Jr. of Papy, Poole, Weissenborn & Papy, Coral Gables, for respondent.

PER CURIAM.

Petitioner seeks relief by petition for writ of prohibition from an order which granted First Fidelity Savings and Loan Association's motion to amend its notice of voluntary dismissal from "with" prejudice to "without" prejudice. Petitioner has not sought the proper remedy. The "purpose [of prohibition] is to prevent the doing of something, not to compel the undoing of something already done. It cannot be used to revoke an order already entered." English v. McCrary, 348 So.2d 293, 297 (Fla. 1977). However, Florida Rule of Appellate Procedure 9.040(c) provides:

If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.

We elect to treat this petition as a non-final appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(5), and we affirm the order of the trial court on the authority of Shampaine Industries v. South Broward Hospital, 411 So.2d 364, (Fla. 4th DCA 1982).

AFFIRMED.

DELL, WALDEN and BARKETT, JJ., concur.