JOHN W. MIKOS, PROPERTY APPRAISER OF SARASOTA COUNTY, FLORIDA, ET AL., PETITIONERS,
v.
SARASOTA CATTLE COMPANY AND CHARLES E. EARLY, RESPONDENTS
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The Florida Supreme Court held that once a plaintiff files notice of readiness for trial, the trial court must set a trial date and cannot dismiss the action for lack of prosecution based on subsequent inactivity, reversing the trial court's dismissal order.
A trial court may not dismiss an action for lack of prosecution once the plaintiff has filed a notice of readiness for trial, as the court has a mandatory duty to enter an order fixing a trial date pursuant to Florida Rule of Civil Procedure 1.440(c). However, this protection is forfeited if the plaintiff subsequently indicates he is not ready for trial.
[1] A plaintiff's notice of readiness for trial, filed pursuant to rule 1.440(b), precludes dismissal of the action for lack of prosecution if the trial court fails to set a…
[2] Once a plaintiff files a notice of readiness for trial, the trial court has the sole responsibility to enter an order fixing a date for trial.
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Join FLexlaw to unlock all legal intelligence“once a plaintiff has given notice that it is ready for trial, the trial judge must enter an order fixing a date for trial and is therefore precluded from dismissing the action for lack of prosecution should the plaintiff fail to take any further action”
Establishes the core holding that notice of readiness bars dismissal for lack of prosecution
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Join FLexlaw to unlock all legal intelligenceSarasota Cattle Company and Charles Early filed suit against property appraiser John Mikos and other officials on January 29, 1975. After extensive pr…
The full statement of facts, procedural history, and disposition for this case are member content.
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BOYD, Chief Justice.
We have for review a decision of a district court of appeal, Sarasota Cattle Co. v. Mikos, 431 So. 2d 260 (Fla. 2d DCA 1983), which held that once a plaintiff has given notice that it is ready for trial, the trial judge must enter an order fixing a date for trial and is therefore precluded from dismissing the action for lack of prosecution should the plaintiff fail to take any further action. Since the district court certified that its decision is in conflict with Brennan v. Ryter, 339 So. 2d 661 (Fla. 1st DCA 1976), cert. denied, 348 So. 2d 944 (Fla.1977); Palatka Housing Authority v. Betts, 349 So. 2d 784 (Fla. 1st DCA 1977); and Allen v. Gaither, 112 So. 2d 855 (Fla. 1st DCA 1959), we have jurisdiction pursuant to article Y, section 3(b)(4) of the Florida Constitution. We agree fully with the decision below and therefore approve it.
In this case respondents Sarasota Cattle Company and Charles Early originally filed suit against John Mikos, property appraiser of Sarasota County, and other officials on January 29, 1975. After several years of extensive pretrial litigation, Mikos noticed the case for trial on November 16, 1979.
Respondents filed their own notice of readiness for trial on February 10, 1981. The trial court entered an order on February 18 disposing of two previously filed motions, but failed to enter an order setting a trial date. Neither party took any further action, nor did the court, until over a year later on August 11, 1982, when Mikos filed a motion to dismiss for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). The trial court granted the motion.
On appeal the district court reversed, holding that plaintiffs had no obligation to take any further action once they had filed a notice of trial pursuant to Florida Rule of Civil Procedure 1.440(b). The district court reasoned that since it is the trial court’s responsibility to enter an order fixing a date for trial under Rule 1.440(c) once notice for trial is given, the filing of the notice bars the trial court from dismissing the action for lack of prosecution, citing 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 simply have no power nor duty to determine which cases will be tried at particular times. The rules contemplate that whenever a plaintiff is ready for trial his attorney must notify the court and ask the court to enter an order setting a trial date. It is inappropriate for a trial attorney to pressure a judge into setting a date. We would like to add, however, that if a plaintiff subsequently indicates that he is not ready for trial, then the filing of the notice of trial will not be a bar to a dismissal for lack of prosecution.
The decision of the district court of appeal is approved.
It is so ordered.
ADKINS, OVERTON, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (29 total)
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Rodger H. Bennett v. Cont'l Chems., Inc., 492 So. 2d 724 (Fla. 1st DCA 1986)…ollow procedural rules that differ from the clear requirements of the civil rules promulgated by that court. At 832. Recent opinions of the Florida Supreme Court seem further to mandate this result. As a side issue in Mikos v. Sarasota Cattle Co., 453 So. 2d 402, 403 (Fla.1984), Chief Justice Boyd, joined by a unanimous court, found occasion to comment that “the [Florida] rules [1.440] contemplate that whenever a plaintiff is ready for trial his attorney must notify the court and ask the court to enter an o…
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Richard A. Bolt, M.D. v. Smith, 594 So. 2d 864 (Fla. 5th DCA 1992)…owever, Florida case law is well settled that once a trial judge has recused himself, further orders of the recused judge are void and have no effect. Rogers v. State, 341 So. 2d 196 (Fla. 4th DCA 1976). Furthermore, in Mikos v. Sarasota Cattle Co., 453 So. 2d 402 (Fla.1984), the Florida Supreme Court held that once a plaintiff gives notice of readiness for trial, the trial judge must enter an order setting a date for trial. The trial court is thereafter precluded from dismissing the action for failure to pro…
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Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990)…r to a requirement that the trial court strike the discovery as sham or pretextual record activity, allowing the trial court then to dismiss the action because more than one year has elapsed without record activity. Cf. Mikos v. Sarasota Cattle Co., 453 So. 2d 402 (Fla.1984) (a plaintiffs notice of trial will not bar dismissal for lack of prosecution if the plaintiff subsequently indicates unreadiness for trial); Fla.R.Civ.P. 1.150. Under this standard, the plaintiffs attorney in this case avoids a dismissal…1 / 2
Previewing 3 of 29 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)
- Yankee Constr. Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA 1983)
- Brennan v. Ryter, 339 So. 2d 661 (Fla. 1st DCA 1976)
- Sarasota Cattle Co. & Charles E. Early v. Mikos, 431 So. 2d 260 (Fla. 2d DCA 1983)
- R & A Trucking, Inc. v. Gen. Host Corp., 399 So. 2d 1058 (Fla. 3d DCA 1981)