Swain v. Swain

884 So. 2d 428, 2004 Fla. App. LEXIS 14302, 2004 WL 2173413

Opinion

PER CURIAM.

Appellant sued his former wife for malicious prosecution and the case was set for trial at 10:00 A.M. He filed a notice of voluntary dismissal without prejudice about twenty minutes before the trial, and neither he nor his counsel appeared at the trial. The wife then moved for a dismissal with prejudice for willful failure to comply with the court’s order to appear for trial, and the court dismissed the complaint with prejudice. Once the notice of voluntary dismissal was filed under rule 1.420(A), however, the trial court was without the power to enter a subsequent order of dismissal with prejudice. Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 69 (Fla.1978). Reversed.

FARMER, C.J., KLEIN, J., and BERGER, WILLIAM J., Associate Judge, concur.