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The post below was published on Friday, October 8th, 2010 at 12:30 PM.

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Second District: Writ Fix

I spoke this morning at The Florida Bar’s Basic Appellate Practice CLE on the subject of what orders are appealable. It was very fun, and it has me a bit focused on jurisdiction at the moment. In that spirit, this decision caught my eye.

The plaintiff in the case filed a notice of voluntary dismissal. The defendant responded by filing a motion to strike the notice, arguing that the plaintiff had previously submitted fraudulent affidavits and should not be permitted to abandon the case. After considering the motion to strike, the trial court gave the plaintiff the option of proceeding to trial or going forward with an evidentiary hearing on the defendant’s fraud allegations. The plaintiff filed a notice of appeal.

The point I find worth discussing is not how the Second District resolved the case (the plaintiff prevailed) but how the appellate court addressed the matter of its jurisdiction. The plaintiff viewed the motion to strike as a motion to set aside the voluntary dismissal and viewed the order on that motion as an appealable nonfinal order entered under rule 1.540. The appellate court disagreed but determined the appeal should proceed as a petition for writ of prohibition, to prohibit the trial court from acting in excess of its jurisdiction by allowing the litigation to continue in court.

Notably, the opinion suggested that, while the district court was considering the matter, an evidentiary hearing on the fraud allegations was held and the plaintiff prevailed. The district court did not make clear what further proceedings remained to be conducted below.

















































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