R & A TRUCKING, INC., APPELLANT,
v.
GENERAL HOST CORPORATION, D/B/A LI'L GENERAL STORES, APPELLEE
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An appeal from a dismissal for failure to prosecute is untimely and must be dismissed when the appellant neither sought timely rehearing nor appealed within the required period, but instead moved to set aside the dismissal nearly a year and a half after the dismissal order was entered.
[1] An appeal from a dismissal for failure to prosecute must be dismissed as untimely when the appellant fails to seek timely rehearing or appeal and instead moves to set asi…
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Join FLexlaw to unlock all legal intelligenceR & A Trucking filed a notice in 1977 that its action was at issue and ready for trial. The trial court dismissed the complaint for failure to prosecu…
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DANIEL S. PEARSON, Judge. While we agree with appellant’s assertion that a notice which it filed in 1977 that the action was at issue and ready to be set for trial should have precluded the 1979 dismissal of its complaint for failure to prosecute despite the lack of record activity during the interim years, Visuna v. Metropolitan Transit Authority, 353 So. 2d 183 (Fla. 3d DCA 1977); Downer v. Mercer, 324 So. 2d 116 (Fla. 3d DCA 1975); City of Miami v. Dade County, 321 So. 2d 140 (Fla. 3d DCA 1975); accord, Biscayne Construction Company v. Metropolitan Dade County, 388 So. 2d 329 (Fla. 3d DCA 1980); contra, Treeshore, Inc. v. Basic Asphalt and Construction Corporation, 354 So. 2d 976 (Fla. 1st DCA 1978); Palatka Housing Authority v. Betts, 349 So. 2d 784 (Fla. 1st DCA 1977); Allen v. Gaither, 112 So. 2d 855 (Fla. 1st DCA 1959), this assertion comes much too late to be entertained by us. The trial court’s order of dismissal was entered, after reasonable notice, see Fla.R.Civ.P. 1.420(e), on February 12, 1979. R & A neither sought a timely rehearing, see Gries Investment Company v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980); see also Florida East Coast Railway Company v. Southern Sanitation Service, Inc., 370 So. 2d 1200 (Fla. 4th DCA 1979), nor appealed. Instead, nearly a year and a half later, it moved to set aside the dismissal and now attempts to appeal from a denial of that motion.1 R & A’s appeal is untimely. See Wagner v. Bieley, Wagner & Associates, Inc., 263 So. 2d 1 (Fla. 1972); Florida East Coast Railway Company v. Southern Sanitation Service, Inc., supra. Accordingly, the appeal is Dismissed. . R & A moved to set aside the dismissal on the same ground it asserts on this appeal. Thus, the motion suggested no ground for relief under Florida Rule of Civil Procedure 1.540 and, moreover, under any potentially applicable provisions of that rule, was untimely. Waiswilos v. Feacher, 370 So. 2d 1250 (Ha. 4th DCA 1979); Brown v. Morella, 371 So. 2d 571 (Fla. 4th DCA 1979) (Anstead, J., dissenting). Even under former Rule 1.420(e), inapplicable to these proceedings, which permitted a motion to reinstate, such a motion was required to be made within thirty days of dismissal. Waiswilos v. Feacher, supra.
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Mikos v. Sarasota Cattle Co. & Charles E. Early, 453 So. 2d 402 (Fla. 1984)…iting City of Miami v. Dade County, 321 So. 2d 140 (Fla. 3d DCA 1975), cert. denied, 334 So. 2d 604 (Fla.1976). See also Yankee Construction Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA 1983); R & A Trucking, Inc. v. General Host Corp., 399 So. 2d 1058 (Fla. 3d DCA 1981); Visuna v. Metroyolitan Transit Authority, 353 So. 2d 183 (Fla. 3d DCA 1977). We agree with the decision below in all respects. A trial judge has sole discretion in determining the order in which cases will be tried. Lawyers simp…
Authorities Cited (15 total)
- Wagner v. Bieley, 263 So. 2d 1 (Fla. 1972)
- Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)
- City OF Miami v. Dade Cnty., 321 So. 2d 140 (Fla. 3d DCA 1975)
- Wilburn Combs v. Atl. Coast Line R.R. Co., 112 So. 2d 855 (Fla. 1st DCA 1959)
- Allen v. Gaither, 112 So. 2d 855 (Fla. 1st DCA 1959)
- Visuna v. Metro. Transit Auth. & Nathanial Billy Davis, 353 So. 2d 183 (Fla. 3d DCA 1977)
- Palatka Hous. Auth. v. Queen Betts, 349 So. 2d 784 (Fla. 1st DCA 1977)
- Biscayne Constr. Co. v. Metro. Dade Cnty., 388 So. 2d 329 (Fla. 3d DCA 1980)
- Fla. E. Coast Ry. Co. v. S. Sanitation Serv., Inc., 370 So. 2d 1200 (Fla. 4th DCA 1979)
- Waiswilos v. Feacher, 370 So. 2d 1250 (Fla. 4th DCA 1979)