Third District Court of Appeal
State of Florida
Opinion filed August 4, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-838
Lower Tribunal No. 17-29027
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Cecilia Garcia, et al.,
Appellants,
vs.
Yamila Evertz, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, David C.
Miller, Judge.
Hopple Law Firm, LLLP, Stephanie C. Hopple and Patrick R. Hopple,
for appellants.
Sutton Law Group, P.A., and John R. Sutton, for appellee, Yamila
Evertz.
Before FERNANDEZ, C.J., and GORDO and LOBREE, JJ.
ON MOTION TO DISMISS
GORDO, J.
Appellant, Cecilia Garcia, seeks review of four trial court orders:
1) Order on Partial Summary Judgment dated August 29, 2019; 2) Order
Denying Cecilia Garcia’s Motion for Leave to Amend Counter-Claim to Claim
Punitive Damages dated October 23, 2019; 3) Order Denying Defendant’s
Motion for Rehearing/Reconsideration dated February 27, 2020; and 4)
Order Granting Plaintiff Yamila Evertz’s Motion for Partial Summary
Judgment Dismissing with Prejudice Counter Claimant Cecilia Garcia’s
Remaining Claims dated March 10, 2020. Appellee, Yamila Evertz, moves
to dismiss this appeal for lack of jurisdiction because the notice of appeal
was not timely filed. We find the notice of appeal was untimely filed thirty-
one days after Evertz’s notice of voluntary dismissal terminating the litigation
and, therefore, dismiss for lack of jurisdiction.
This appeal arose out of an action filed by Evertz against Garcia. On
May 4, 2020, Evertz voluntarily dismissed with prejudice all pending claims
in the action. Garcia appealed on June 4, 2020.
This Court, on its own motion, issued an order to show cause why the
appeal should not be dismissed as taken from a non-final, non-appealable
order; or untimely. Garcia responded, alleging the appeal was prematurely
filed prior to the entry of final judgment in the case. Garcia then filed with the
lower court an ex parte motion for entry of final judgment. The court entered
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final judgment on June 11, 2020. Garcia filed an amended notice of appeal
of the final judgment. As a result, we discharged the order to show cause
on July 8, 2020. Garcia failed to appraise this Court, however, that on June
29, 2020, the trial court vacated the June 11, 2020 final judgment, finding
that it “incorrectly believed the [proposed] Final Judgment submitted by
Defendant Cecilia Garcia was stipulated to by Plaintiff and that this Court
retained jurisdiction for entry of Final Judgment.” The trial court found that
following its dismissal with prejudice of Garcia’s counterclaims and Evertz’s
voluntary dismissal with prejudice of her remaining claims, its judicial labor
had ended. The court vacated the final judgment nunc pro tunc stating “no
further order was permissible and jurisdiction was lost to the Third District
Court of Appeal.”
Evertz filed the vacatur order with this Court and moved to dismiss the
appeal as untimely filed more than thirty days after its notice of voluntary
dismissal. “It is well accepted that the effect of a plaintiff’s voluntary
dismissal under rule 1.420(a)(1) is jurisdictional. The voluntary dismissal
serves to terminate the litigation, to instantaneously divest the court of its
jurisdiction to enter or entertain further orders that would otherwise dispose
of the case on the merits, and to preclude revival of the original action.” Pino
v. Bank of New York,
121 So. 3d 23, 32 (Fla. 2013). “The dismissal is
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effective upon service.”
Id. Florida Rule of Appellate Procedure 9.110(b)
provides that the jurisdiction of the appellate court “shall be invoked by filing
a notice . . . with the clerk of the lower tribunal within 30 days of rendition of
the order to be reviewed.” “A final order or judgment is one which evidences
on its face that it adjudicates the merits of, and disposes of, the matter before
the court and leaves no judicial labor to be done.” Nader + Museu I, LLLP
v. Miami Dade Coll.,
307 So. 3d 140, 142 (Fla. 3d DCA 2020) (citation
omitted). “Ordinarily, a notice of voluntary dismissal will, by itself, . . .
sufficiently conclud[e] the action.”
Id.
In the instant case, the notice of appeal dated June 4, 2020, was
untimely filed thirty-one days after Evertz’s May 4, 2020 notice of voluntary
dismissal.
Dismissed.
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