JOHN WAISWILOS, INDIVIDUALLY, AND ALLSTATE INSURANCE COMPANY, APPELLANTS,
v.
JEAN MARIE FEACHER, APPELLEE
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This interlocutory appeal concerns whether a trial court properly set aside a 1972 dismissal order for lack of prosecution over five years later based on Rule 1.540. The appellate court reversed, holding that the dismissal order was not void as a matter of law and that even if Rule 1.540 relief were available, the motion was untimely as filed more than five years after the dismissal.
The dismissal order was not void as a matter of law but merely erroneous, and thus relief was not available under Rule 1.540(b)(4). Even if such relief were theoretically available, the motion to set aside filed over five years after the dismissal was not made within a reasonable time as required by Rule 1.540.
[1] An order granting relief under Fla. …
[2] A dismissal for lack of prosecution, entered by a court with legal organization and jurisdiction over the parties, is not void, but merely erroneous.
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Join FLexlaw to unlock all legal intelligence“An order based on a matter within the issues raised by the pleadings is not void if the court as organized existed legally and had jurisdiction of the parties.”
Establishes the legal standard for when an order is void as a matter of law, requiring the court to have lacked legal existence or jurisdiction.
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Join FLexlaw to unlock all legal intelligenceAppellants moved to dismiss the action for lack of prosecution, and an order dismissing the cause was entered in December 1972 pursuant to Fla. R.Civ.…
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PER CURIAM.
This is an interlocutory appeal from an order dated November 7,1978, setting aside an order of dismissal for lack of prosecution dated December 21, 1972.
Appellants moved to dismiss the cause for lack of prosecution, and an order was entered dismissing the cause pursuant to Fla. R.Civ.P. 1.420(e) then in effect. During the year preceding the motion to dismiss however, a pluries summons, without any return thereon, had been filed in the cause without explanation, since long before the filing of the summons the defendants had answered.
At the time of the dismissal no effort was made by the appellee to reinstate the cause within one month under Rule 1.420(e), nor was an appeal taken from the dismissal. Gibbs v. Trudeau, 283 So. 2d 889 (Fla. 1st DCA 1973).
Over five years subsequent to the 1972 order of dismissal, appellee served its joint motion to set aside the order dismissing the cause and petition for reinstatement of the cause of action; and on November 7, 1978, the trial court granted the motion “on the grounds that said Order was void in that the evidence on the face of the record indicated some action had been taken within one year prior to filing of the motion by the Defendants,” and granted the petition for reinstatement.
The first point on appeal concerns this court’s jurisdiction to review the interlocutory appeal, appellant contending that relief having been granted appellee pursuant to Fla.R.Civ.P. 1.540, the appeal was proper, while appellee asserts that Rule 1.540 is not applicable because both the motion to set aside and the petition to reinstate relied on Rule 1.420(e).
The ground of appellee’s motion to set aside the order dismissing the cause was that the order was void as a matter of law because of the filing of the pluries summons; the order of the court granted the motion as aforesaid on the ground that the order was void. Rule 1.540(b)(4) provides for relief where the judgment or decree is void. It therefore appears that the order grew out of Rule 1.540 and thus is subject to review under Fla.R.App.P. 9.130(a)(5).
The second point on appeal is the propriety of the order setting aside the order of dismissal. An order based on a matter within the issues raised by the pleadings is not void if the court as organized existed legally and had jurisdiction of the parties. Varnes v. Kirk, 251 So. 2d 324 (Fla. 1st DCA 1971). Such was true here; the order of the court dismissing the action in 1972 was not void, but merely erroneous and relief was not available to appellee under Rule 1.540(b)(4). Gross v. Simanonok, 366 So. 2d 47 (Fla. 2d DCA 1978). Even so, such rule requires that a motion for reason that the judgment or decree is void must be made within “a reasonable time.” A motion filed over five years after the dismissal was not filed within such reasonable time. Trawick’s Fla.Prac. and Proc., § 26-8, p. 414. Accordingly, the order granting appel-lee’s motion to set aside the order dismissing the cause for lack of prosecution and granting reinstatement is hereby reversed.
DOWNEY, C. J., and ANSTEAD, J., and WARREN, LAMAR, Associate Judge, concur.
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Marsh & McLennan, Inc. v. Aerolineas Nacionales del Ecuador, 530 So. 2d 971 (Fla. 3d DCA 1988)…appeal justifies this Court’s acceptance of certiorari jurisdiction. These grounds are not sufficient to justify cer-tiorari review.’’) and id. (Upchurch, J., dissenting) (arguing that certiorari should have been granted). Cf. Waiswilos v. Feacher, 370 So. 2d 1250 (Fla. 4th DCA 1979) (appeal under Rule 9.130(a)(5) is proper from setting aside of dismissal for lack of prosecution six years after original order).…
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Biscayne Constr. Co. v. Metro. Dade Cnty., 388 So. 2d 329 (Fla. 3d DCA 1980)…oin in defense of Thornburgh’s counterclaim, and this action is reflected in the clerk’s progress docket, there exists sufficient record activity under Florida Rule of Civil Procedure 1.420(e) to defeat a motion to dismiss, see Waiswilos v. Feacher, 370 So. 2d 1250 (Fla. 4th DCA 1979); (2) the record action of Biscayne in procuring the issuance of this summons, albeit directed against a third-party defendant and unrelated to Biscayne’s original complaint against Roggles, Hosford, Dade County and Thornburgh, wa…
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Palmer v. Inez Palmer, 479 So. 2d 221 (Fla. 5th DCA 1985)…85), rev. denied, 475 So. 2d 696 (Fla.1985); Florida Power and Light Company v. Canal Authority, 423 So. 2d 421 (Fla. 5th DCA 1982), pet. denied, 434 So. 2d 887 (Fla.1983). Girteit v. Girteit, 400 So. 2d 192 (Fla. 3d DCA 1981); Waiswilos v. Feacher, 370 So. 2d 1250 (Fla. 4th DCA 1979); Varnes v. Kirk, 251 So. 2d 324 (Fla. 1st DCA 1971). The motion did not allege, nor do the facts support, the conclusion that the judgment in this case was void for lack of jurisdiction. The motion for relief from judgment shoul…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gibbs v. Trudeau, 283 So. 2d 889 (Fla. 1st DCA 1973)
- Gross v. Simanonok, 366 So. 2d 47 (Fla. 2d DCA 1978)
- Varnes v. Kirk, 251 So. 2d 324 (Fla. 1st DCA 1971)