NICHOLAS G. FERRARA, APPELLANT,

v.

COYLE BEVERAGES, INC., A FLORIDA CORPORATION, COYLE BEVERAGES OF BROWARD, INC., A FLORIDA CORPORATION, AND SEABOARD AIR LINE RAILROAD COMPANY, A FOREIGN CORPORATION, APPELLEES

Fla. 3d DCA | 1963-10-15

No. 63-10

Before CARROLL and HORTON, JJ., and BARNS, PAUL D., Associate Judge.

156 So. 2d 907 Florida District Court of Appeal, Third District (1963) Positive Treatment

Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Ferrara appeals the dismissal of his lawsuit for lack of prosecution. The trial court dismissed the case relying on a precedent that had since been reversed by the Florida Supreme Court, which held that dismissals for lack of prosecution are discretionary decisions subject to an abuse-of-discretion standard. The appellate court reversed, finding that filing a notice of trial and praecipe for docketing constituted sufficient action to prosecute the case within the one-year period.

Holding

The trial court abused its discretion in granting the motion to dismiss for lack of prosecution and in denying the motion for reinstatement. Filing a written notice of trial and praecipe for docketing constitutes a sufficient step in the prosecution of a case to prevent dismissal under § 45.19(1), and decisions on dismissal for lack of prosecution are discretionary and subject to an abuse-of-discretion standard.

Key Quotes

“such an order is subject to attack only upon the ground that it constitutes an abuse of discretion, and this heavy burden must be borne by the losing party.”
Establishes that dismissals for lack of prosecution are discretionary and subject to abuse-of-discretion review

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Ferrara sued Coyle Beverages and related defendants. Answers to interrogatories were filed on September 8, 1961. On September 6, 1962, Ferrara filed a…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

Topics

Petition For Reinstatement Dismissal For Failure To Prosecute Abuse Of Discretion

Explore caselaw by topic → Browse Petition For Reinstatement cases and more on FLexlaw

Opinion of the Court

HORTON, Judge.

The appellant seeks reversal of an order of dismissal for lack of prosecution and an order denying his petition for reinstatement, both entered pursuant to § 45.19(1), Fla. Stat., F.S.A.1

The salient dates around which the controversy on this appeal arises are as follows. Answers to interrogatories propounded to the defendants Coyle was filed on September 8, 1961. The appellant, on September 6, 1962, filed a written notice of trial and praecipe for docketing with the clerk of the trial court. On September 18, 1962, the appellees Coyle Beverages, Inc. and Coyle Beverages of Broward, Inc., filed a motion to dismiss the appellant’s cause of action for lack of prosecution pursuant to the provisions of § 45.19, supra. In granting the motion to dismiss for lack of prosecution, the trial court relied upon the decision of this court in Adams Engineering Co. v. Construction Products Corp., Fla.App.1962, 141 So.2d 300. In the latter case, this court reversed an order denying a motion to dismiss for lack of prosecution on the theory that a mere request of the clerk to place the cause on the trial docket was not “action” taken in the prosecution of the case. On certiorari, the Supreme Court of Florida quashed the decision and judgment of this court,2 holding that “such an order is subject to attack only upon the ground that it constitutes an abuse of discretion, and this heavy burden must be borne by the losing party.” The controlling element of the Supreme Court’s decision appears to be that a ruling of the trial court in matters involving the dismissal of actions for lack of prosecution and/or their reinstatement must be regarded as discretionary.

In the case at bar, the record discloses that a written notice of trial and a praecipe for docketing was filed within the one-year period. Since such action has been regarded as a step in the prosecution of the cause, we conclude, that the trial judge’s *909granting of the motion to dismiss was an abuse of discretion, as was his denial of the motion for reinstatement.

Accordingly, the orders appealed are reversed.

. “§ 45.19(1). All actions at law or suits in equity pending in the several courts of the state, and instituted subsequent to 12 o’clock noon, October 1, 1947, in which there shall not affirmatively appear from some action taken by filing of pleadings, order of court, or otherwise, that the same is being prosecuted, for. a period of one (1) year, shall be deemed abated for want of prosecution and the same shall be dismissed by the court having jurisdiction of the cause, upon its own motion or upon motion of any person interested, whether a party to the action or suit or not, with notice to opposing counsel, provided that actions or suits dismissed under the provisions hereof may be reinstated by petition upon good cause shown to the court filed by any party in interest within one (1) month after such order of dismissal.”

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

City OF Miami v. Dade Cnty., 321 So. 2d 140 (Fla. 3d DCA 1975)

…tion to prevent dismissal for lack of [*142] prosecution. Cf. Adams Engineering Company v. Construction Products Corporation, Fla.App.1962, 141 So. 2d 300; Beck v. Humkey, Fla.App.1962, 146 So. 2d 613; Ferrara v. Coyle Beverages, Inc., Fla.App.1963, 156 So. 2d 907. Rule 1.440, RCP,2 as last amended, effective January 1, 1973, requires that the clerk, after notice of trial, shall submit the notice and file to the court and that the court shall enter an order fixing the date of trial. The precise question befo…
LaVonne D. Reilly v. Fuss, 170 So. 2d 475 (Fla. 2d DCA 1964)

…District Court of Appeal held that the trial judge did not abuse his discretion in finding good cause for reinstatement pursuant to § 45.19 Fla.Stat., F.S.A. In the Little case, supra, and in Ferrara v. Coyle Beverages, Inc., et al., Fla.App. 1963, 156 So. 2d 907, the Third District Court observed that a ruling involving the dismissal of actions for lack of prosecution or their reinstatement are subject to attack only on the ground that it constitutes an abuse of discretion. N.b.: Adams Engineering Co. v. Co…
Morton M. Beigel v. Simon, 210 So. 2d 473 (Fla. 3d DCA 1968)

…emaining question is whether the filing of the “Trial Notice” constitutes such affirmative action toward prosecution of the cause as will prevent dismissal. In this connection, we rely upon the case of Ferrara v. Coyle Beverages, Inc., Fla.App.1963, 156 So. 2d 907, wherein a written notice of trial and praecipe for docketing was held to be a “step in the prosecution of the cause.” See also: Beck v. Humkey, Fla.App.1962, 146 So. 2d 613. Having concluded that it was error to have dismissed the cause, we find i…

Authorities Cited

Adams Eng'g Co., Inc. v. Constr. Prods. Corp., 156 So. 2d 497 (Fla. 1963)
Adams Eng'g Co., Inc. v. Constr. Prods. Corp., 141 So. 2d 300 (Fla. 3d DCA 1962)

Full citator, related cases, and AI research tools

Open in FLexlaw