State v. Ashby

294 So.3d 445

State of Florida DEPARTMENT OF REVENUE O/B/O Jhody Tanisha VENZEN, Appellant,

v.Jan Jensen ASHBY and Kyron Tuitt, Appellees.

Case No. 5D19-1244

District Court of Appeal of Florida, Fifth District.

Opinion filed April 17, 2020

Ashley Moody, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.

No Appearance for Appellees.

PER CURIAM.

The Florida Department of Revenue ("DOR"), on behalf of Jhody Venzen ("Mother"), appeals the trial court's dismissal with prejudice of its complaint against Jan Ashby ("Ashby") and Kyron Tuitt ("Former Husband"). Because the trial court lacked jurisdiction to dismiss the case with prejudice, we reverse.

Ashby and Mother had an affair while she and Former Husband were married. She later gave birth to a daughter. Mother and Former Husband thereafter divorced. Mother claimed the divorce court had entered a final judgment, concluding Former Husband was not the child's father and dispensing with his support obligations. On Mother's behalf, DOR sued Ashby and Former Husband to establish paternity and require support payments.

At trial, Mother and Former Husband did not appear. Ashby, through counsel, asked the trial court to hear his motion to dismiss DOR's petition. DOR then announced a voluntarily dismissal of the case without prejudice. Ashby's lawyer insisted on dismissal with prejudice, and the trial court agreed to hear Ashby's motion. It then heard evidence, granted the motion, and dismissed the case with prejudice.

Whether the trial court retained jurisdiction over this case after DOR voluntarily dismissed it is a question of law we review de novo. See Rebolledo v. Cordero , 217 So. 3d 147, 149 (Fla. 3d DCA 2017) (citing Herbits v. City of Miami , 197 So. 3d 575, 578 (Fla. 3d DCA 2016) ). Plaintiffs have an "almost absolute" right to voluntarily dismiss their cases. Tobkin v. State , 777 So. 2d 1160, 1163–64 (Fla. 4th DCA 2001) (citing Fears v. Lunsford , 314 So. 2d 578, 579 (Fla. 1975) ); accord Kelly v. Colston , 977 So. 2d 692, 694 (Fla. 1st DCA 2008). Generally, the voluntary dismissal of a case is without prejudice and terminates the trial court's jurisdiction to enter further orders. Fla. Fam. L. R. P. 12.420(a)(3) ; Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P. , 143 So. 3d 1182, 1182–83 (Fla. 4th DCA 2014) (citing Randle-E. Ambulance Serv., Inc., v. Vasta , 360 So. 2d 68, 69 (Fla. 1978) ); Kelly , 977 So. 2d at 694.

DOR had the right to voluntarily dismiss its action by stating its dismissal on the record before submitting its case to the trial court for decision. See Fla. Fam. L. R. P. 12.420(a)(1)(A) ; Kelly , 977 So. 2d at 694. Its voluntary dismissal immediately ended the litigation and instantly divested the trial court of jurisdiction. See Kelly , 977 So. 2d at 694. Accordingly, the trial court lacked jurisdiction to grant Ashby's motion to dismiss. On remand, the trial...