AIR CONTROL PRODUCTS, INC., AND PAUL R. STERN, TRUSTEE, APPELLANTS,
v.
PERMA-STRESS, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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Air Control Products and a trustee appealed the denial of their motion to dismiss for want of prosecution in a long-pending property dispute. The court held that Florida's statute on dismissal for lack of prosecution (F.S. § 45.19) applies even when the United States is a party defendant, and therefore the motion to dismiss was properly denied.
The court held that F.S. § 45.19 applies to suits in which the United States is a party defendant, and there is no exemption in the statute or prohibition under federal law (28 U.S.C.A. § 2410) preventing its application. Therefore, the motion to dismiss for want of prosecution was properly denied.
“We find nothing in F.S. § 45.19, F.S.A., as amended, which exempts the United States of America from its operation under conditions where suits, such as this, may be maintained against it.”
Establishes that the dismissal statute contains no exemption for the United States as a party defendant
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Join FLexlaw to unlock all legal intelligenceThis case involved a property dispute originally decided in Stern v. Perma-Stress, Inc., 134 So.2d 509 (Fla.App.1961). Since that decision, several de…
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This is an interlocutory appeal by appellants, Air Control Products, Inc., and Paul R. Stern, Trustee, (defendants below) from an order of the Circuit Court denying said defendants’ motion to dismiss for want of prosecution.
No oral argument was requested, and none of the appellees have favored us with a brief, although the time for filing a brief was once extended.
The facts involved in this controversy are fully set forth in Stern v. Perma-Stress, Inc., 134 So.2d 509 (Fla.App.1961)., Since the events set out in that opinion only the following matters have occurred:
(a) The United States of America became a party by reason of a lien which it claimed upon the property.
(b) On July 15, 1964, the lower court authorized substitution of a personal representative for a party who had become deceased.
(c) On July 28, 1964, a suggestion of the dissolution of the defendant, Masterbilt Contractors, Inc., was filed showing the dissolution of said corporation on May 24, 1963.
(d) On July 31, 1964, the personal representative of the deceased individual defendant filed a motion to dismiss.
(e) An amended order on the substitution of the personal representative was dated as of July 15, 1964, but filed in the clerk’s office on August 3, 1964.
No other proceedings were taken in this matter until the filing of the instant motion to dismiss on August 4, 1965.
The motion to dismiss was heard on August 18, 1965, and was denied in the following language:
“ * * * it further appearing to the Court that the United States of America is a party defendant to the Cross-claim in this cause and that Statute 45.19 is inapplicable to suits in which the United States. of America is a party, and for other reasons, * *
We find nothing in F.S. § 45.19, F.S.A., as amended, which exempts the United States of America from its operation under conditions where suits, such as this, may be maintained against it. Nor is there any prohibition against the operation of this Statute under 28 U.S.C.A. § 2410, by which the United States submitted itself to the jurisdiction of state courts in cases of this character. See also United States v. Brosnan, 363 U.S. 237, 80 S.Ct. 1108, 4 L.Ed.2d 1192. We cannot agree,
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Pollock v. T & M Invs., Inc., 420 So. 2d 99 (Fla. 3d DCA 1982)…ts corporate existence is said to continue for the purpose of satisfying its liabilities to the plaintiff in the instant action. City of Hollywood v. Bair, 129 Fla. 93, 178 So. 850 (Fla.1937); Air Control Products, Inc. v. [*104] Perma-Stress, Inc., 189 So. 2d 412 (Fla. 1st DCA 1966). Furthermore, enforcement of judgment against T & M may be had under Section 607.301, Florida Statutes (1979).2’3 Gould v. Brick, 358 F. 2d 437 (5th Cir. 1966); Chapman v. L & N Grove, Inc., 265 So. 2d 725 (Fla. 2d DCA 1972). Pre…
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Chapman v. L & N Grove, Inc., 265 So. 2d 725 (Fla. 2d DCA 1972)…judgment was rendered as a result of a suit commenced prior to dissolution, based on a prior “liability,” even though rendered subsequent to dissolution. This reasoning is supported by Air Control Products, Inc. v. Perma-Stress, Inc., Fla.App.1966, 189 So. 2d 412. We have no quarrel with the proposition that § 608.30 is in derogation of the common law and must therefore be strictly construed. We simply say that construction must take place in the realm of the facts presented in each instance of application.…
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Vincent v. DeMaria Porsche-Audi, Inc., 532 F. Supp. 1035 (S.D. Fla. 1982)…this action and under the cases interpreting the Florida statute, the Florida courts have held *1039 that the dissolution of a corporation is unlike the death of an individual party. See Air Control Products, Inc. v. Perma-Stress, Inc., 189 So.2d 412 (Fla. 1st D.C.A. 1966). Therefore, it would appear that the Florida corporation would remain a citizen of Florida for diversity purposes. With regard to Plaintiff’s request for sanctions, the Court does not find the need for such measures in thi…
Authorities Cited
- United States v. Brosnan, 363 U.S. 237 (U.S. 1960)
- Stern v. Perma-Stress, Inc., 134 So. 2d 509 (Fla. 1st DCA 1961)