KENNETH OWENS, APPELLANT,
v.
KEN'S PAINT AND BODY SHOP, APPELLEE
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Kenneth Owens appealed the dismissal of his lawsuit against Ken's Paint and Body Shop for failure to prosecute. The Florida District Court of Appeal reversed, finding the trial judge abused its discretion by dismissing the case when the record showed the plaintiff had taken active steps to prosecute the action.
The court reversed the dismissal order, holding that the trial court abused its discretion. The plaintiff's filing of a notice of deposition and a motion to strike for failure to make discovery constituted sufficient active measures to prosecute the cause and did not constitute a failure in the duty to hasten the suit to judgment.
“It affirmatively appears that the trial judge misconceived the state of the record at the time of the entry of his order.”
Establishes the basis for reversal—the trial judge's factual error regarding the plaintiff's efforts to prosecute
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Join FLexlaw to unlock all legal intelligenceWithin one year prior to the dismissal order, Owens filed a notice to take the defendant's deposition and filed a motion to strike the defendant's ple…
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The plaintiff appeals an order dismissing his cause in the trial court for failure to prosecute. See Florida Rules of Civil Procedure 1.420(e), 30 F.S.A. and 45.19(1) Fla.Stat., F.S.A. The order was entered by the court upon its own motion.
First we note that the appellant did not make a motion to reinstate provided by the rule. Under some conditions of the record this failure has been held to be a fatal defect. See National Surety Corp. v. Grahn, Fla. 1952, 57 So.2d 457; Carn v. Quarles, Fla.App.1963, 157 So.2d 536; Reilly v. Fuss, Fla.App.1964, 170 So.2d 475.
In Zukor v. Hill, Fla.1956, 84 So.2d 554, the Supreme Court held that the dismissal of an action under statute dealing with abatement of action pending one year without prosecution, becomes absolute after the passage of one month. We therefore conclude that the instant order is final and appealable. See art. 5, sec. 5(3) Florida Constitution, F.S.A.
It should be noted that a ruling on a motion for order of dismissal for failure to prosecute is subj ect to attack only on the ground that it constitutes an abuse of discretion, and this heavy burden must be borne by the losing party. Adams Engineering Co. v. Construction Products Corp., Fla.1963, 156 So.2d 497. The same test is to be applied in an appeal from an order on a motion to reinstate an action dismissed for want of prosecution. Young v. Pyle, Fla.App.1967, 193 So.2d 659 [opinion filed January 12, 1967], See Adams Engineering Co. v. Construction Products Corp., supra.
*19It affirmatively appears that the trial judge misconceived the state of the record at the time of the entry of his order. Within the one year prior to the order, the plaintiff had made apparent efforts to prosecute his cause by the filing of a notice to take the deposition of the defendant, and by a motion to strike defendant’s pleadings for failure of defendant to make discovery. Upon the condition of this record, which reveals that the defendant has removed himself from the jurisdiction, and counsel of record for the defendant have asked leave of court to withdraw, the plaintiff cannot he said to have failed in his duty to take some active measure intended and calculated to hasten the suit to judgment. Gulf Appliance Distributors, Inc. v. Long, Fla.1951, 53 So.2d 706, Reilly v. Fuss, Fla. App.1964, 170 So.2d 475.
We therefore conclude that the instant ruling constituted an abuse of discretion.
Reversed and remanded.
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Citator
Cited By (11 total)
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Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla. 1972)…Dismissal” is not crucial to our decision, however. Without such an order, the July 17, 1970 affidavit standing alone constitutes prosecution of the cause within the year preceding the October 15, 1970 motion. See Owens v. Ken’s Paint and Body Shop, 196 So. 2d 17 (Fla.App. 3rd, 1967); Adams Engineering Company, Inc. v. Construction Products Corporation, 156 So. 2d 497 (Fla. 1963); Equity Capital Company v. 601 West 26 Corp., 223 So. 2d 762 (Fla.App. 3rd, 1969); and Whitney v. Whitney, 241 So. 2d 436 (Fla.App…
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Reddish v. Forlines, 207 So. 2d 703 (Fla. 1st DCA 1968)…59; see also 167 A.L.R. 1062. . Macfarlane v. Hills, 50 Fla. 566, 39 So. 994. . Maloy v. Bristow (Fla.App.1962), 138 So. 2d 801. . 24 Am.Jur.2d 51, Dismissal, Discontinuance and Nonsuit, § 60. . Owens v. Ken’s Paint and Body Shop (Fla.App.1967), 196 So. 2d 17. . Rosenfeld v. Glickstein (Pla.App.1967), 200 So. 2d 242. .Declaration of Rights, § 4, Florida Constitution, F.S.A.…
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Sroczyk v. Fritz, 220 So. 2d 908 (Fla. 1969)…tle v. Sullivan, Fla., 173 So. 2d 135. But what is said on this question in that case is obiter dictum because the court was there considering an appeal from an order on a motion to reinstate. . Notably Owens v. Ken’s Paint and Body Shop, Fla.App., 196 So. 2d 17: Green v. Bursten, Fla.App., 197 So. 2d 326; Newman v. Bennefeld, Fla.App., 193 So. 2d 482; Landfield v. Sherman, La.App., 201 So. 2d 819. .Section 45.19, Florida Statutes—now Rule 1.420(e) Rules of Civil Procedure, 30 F.S.A.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Adams Eng'g Co., Inc. v. Constr. Prods. Corp., 156 So. 2d 497 (Fla. 1963)
- Zukor v. Hill, 84 So. 2d 554 (Fla. 1956)
- LaVonne D. Reilly v. Fuss, 170 So. 2d 475 (Fla. 2d DCA 1964)
- Young v. Pyle, 193 So. 2d 659 (Fla. 1st DCA 1967)
- Carn v. Quarles, 157 So. 2d 536 (Fla. 2d DCA 1963)