
    RYDER SYSTEM, INC., Appellant, v. Leslie Jack O’CONNOR, Appellee.
    No. 77-2326.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    Rehearing Denied May 11, 1979.
    
      Ronald P. Weil, of Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appellant.
    Larry Klein and Frates & Mathison, West Palm Beach, for appellee.
   LETTS, Judge.

This cause is affirmed.

We have given careful consideration to Judge Stettin’s well reasoned dissent, but cannot agree with his conclusion.

The point he believes to be controlling was not raised on appeal. Notwithstanding we would adopt the dissent, but for the existing counterclaim. Fla.R.Civ.P. 1.420(a)(2) clearly mandates that a voluntary dismissal cannot be taken save by leave of court, when a counterclaim has been filed. This vital distinction was fully appreciated by all parties to this cause when one considers the following language from a Motion for a Continuance filed by the plaintiff.

1. A notice of voluntary dismissal without prejudice was filed by plaintiff in this cause on June 15, 1977 and the notice of the intention to take a voluntary dismissal was communicated to defendant on June 14, 1977. Both parties then notified their witnesses and arranged their schedules in accordance with this procedure.
2. Both parties were unaware at the time of the existence of a counterclaim in this cause which prohibits the taking [of] a voluntary dismissal without leave of court.
3.Defendant contacted plaintiffs on June 21, 1977 and indicated its objection to a voluntary dismissal by the plaintiffs but agreed that a continuance of this matter would be in the best interest of all parties concerned. Plaintiff agrees and respectfully requests the cd'urt to grant a continuance and transfer this cause to another docket.

From the foregoing, it is obvious that all parties conceded that the cause could not be dismissed without leave of court and that in fact, it had not been. To us, this chain of events prevented a loss of jurisdiction.

AFFIRMED.

ANSTEAD, J., concurs.

STETTIN, HERBERT, Associate Judge, dissents with opinion.

STETTIN, HERBERT,

Associate Judge, dissenting:

The trial court heard conflicting testimony at a nonjury trial and resolved it in favor of the appellee, who was the plaintiff below. Its ruling is fully supported by the record and should be affirmed without hesitation, but for the plaintiff’s procedural error which vitiates the entire trial.

The complaint sounded in contract seeking recovery upon a policy of major medical insurance issued by Ryder to its employees. Ryder raised as a defense that the expenses claimed were the result of a pre-existing condition. It also counterclaimed to recover those medical expenses previously paid for the plaintiff on the ground of mistake.

Thereafter, the plaintiff served a Notice of Voluntary Dismissal, pursuant to Rule 1.420(a)(l)(i), Florida Rules of Civil Procedure. That notice was served before trial and while there was no pending adverse motion for summary judgment. Under the case law of this State, the plaintiff’s notice was fully and finally dispositive of the plaintiff’s complaint. It did not, of course, affect the counterclaim, but as to the complaint:

“The effect is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of ‘jurisdiction.’ If the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way, it follows that he has no jurisdiction to reinstate a dismissed proceeding.”

Randle-Easterp Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978).

The parties proceeded to trial, as indicated above, oblivious to the Notice of Dismissal. No attack by Ryder on this ground has ever been mounted to the final judgment, either-below, or in this Court. None would ordinarily lie except that the issue is one of jurisdiction. If, as indicated in Ran-dle-Eastern, supra, the Notice of Voluntary Dismissal is finally dispositive of the plaintiff’s right to proceed; is self-acting, and is beyond the power of the parties and the lower court to countermand, then any acts performed by the parties and the trial judge after its having been filed are wholly ineffective. The trial and final judgment are nullities.

I would reverse.  