ROY SMARTT, PETITIONER,
v.
FIRST UNION NATIONAL BANK, ET AL., RESPONDENT
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A Florida appellate court denies mandamus relief to compel a trial court judge to rule on a motion to dismiss, holding that the petitioner must first make an express and distinct demand for performance directly to the judge before mandamus may be considered.
Mandamus will not be considered unless the petitioner first makes an express and distinct demand for performance to the judge. The court must follow traditional procedures of scheduling a hearing with a judge's judicial assistant to bring matters to the judge's attention, or refer to local court rules and customs for proper procedures.
[1] A litigant seeking to compel a judge to rule on a motion must first make an express and distinct demand for performance.
[2] A document filed with the clerk of court may not be brought to the attention of the assigned judge without further action by the litigant.
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Join FLexlaw to unlock all legal intelligence“a petitioner seeking to compel action on the part of a judge must first make an express distinct demand for performance before mandamus will be considered”
Establishes the key requirement for obtaining mandamus relief
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Join FLexlaw to unlock all legal intelligenceRoy Smartt filed a motion for a hearing on July 11, 2000, but the trial court did not respond or rule on his opponent's motion to dismiss in the under…
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PETERSON, J.
Roy Smartt seeks mandamus to require a circuit court judge to rule on his opponent’s motion to dismiss Smartt’s complaint in a civil action. Smartt alleges that he filed a motion for a hearing on July 11, 2000, but the trial court has not responded in any manner. In Medberry v. Circuit Court for Brevard County, 762 So. 2d 1037 (Fla. 5th DCA 2000), we held that a petitioner seeking to compel action on the part of a judge must first make an express distinct demand for performance before mandamus will be considered. A document filed with the clerk of the court may merely be placed in the court file, with the file returned to storage and not forwarded to a judge for action. See id. at 1038 (citing Powell v. Watson, 565 So. 2d 845 (Fla. 5th DCA 1990)).
Most documents or pleadings filed in the clerk’s office are merely stepping stones to a hearing or trial and do not require immediate action by the assigned judge. The clerk does not normally review and interpret each and every filing to determine whether a court file needs to be forwarded to a judge for action. Normally, litigants schedule an appointment for a hearing with a judge’s judicial assistant in order to bring a matter to the attention of the judge and to give notice of the hearing to all other interested litigants. We acknowledge that there are variations to this traditional manner of handling matters before the trial court. The variations are either explained by local court rules or by local custom and are easily determined by dis cussion with the judge’s judicial assistant. If the litigant does not know to which judge the case has been assigned, the clerk of court can assist with that information.
Delays are more likely to occur when parties proceed pro se and litigants have the responsibility of bringing matters to the attention of the assigned judge. See Powell, 565 So. 2d at 846. Smartt must fulfill that responsibility and only after having done so will we entertain a petition for mandamus if a ruling is not rendered in a reasonable time. Meanwhile, we deny the petition without prejudice.
PETITION DENIED WITHOUT PREJUDICE.
COBB and W. SHARP, JJ., concur.
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Clark v. Nichols M. N. P., 225 So. 3d 416 (Fla. 1st DCA 2017)…(Fla. 1st DCA 2002) (“Absent a showing that the trial court has failed to take action on some pending matter he has noticed for hearing, [the petitioner] has failed to establish an entitlement to mandamus relief.”); Smartt v. First Union Nat’l Bank, 771 So. 2d 1232 (Fla. 5th DCA 2000). We DENY the petition accordingly. LEWIS, RAY, and JAY, JJ., CONCUR.…
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Moore v. S.T. Varnes, 920 So. 2d 117 (Fla. 1st DCA 2006)…PER CURIAM. DENIED. Smartt v. First Union Nat’l Bank, 771 So. 2d 1232 (Fla. 5th DCA 2000). BARFIELD, DAVIS and HAWKES, JJ., concur.…
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Johnson v. State, 779 So. 2d 625 (Fla. 1st DCA 2001)…PER CURIAM. DENIED. Smartt v. First Union National Bank, 771 So. 2d 1232 (Fla. 5th DCA 2000). BARFIELD, C.J., WEBSTER and Van NORTWICK, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Medberry v. Cir. Court FOR Brevard Cnty., 762 So. 2d 1037 (Fla. 5th DCA 2000)
- Rory Wayne Powell v. Hon. John W. Watson, III, 565 So. 2d 845 (Fla. 5th DCA 1990)