JOE PERRY WILDS, JR., APPELLANT,
v.
ARTHUR H. PERMENTER, APPELLEE
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A plaintiff's damage suit was dismissed for lack of prosecution, then tried to a jury nine and a half months later without timely reinstatement. The trial court reinstated the case post-trial after a plaintiff's verdict, but the appellate court reversed, holding that the dismissal became final when no reinstatement motion was filed within one month, depriving the trial court of jurisdiction.
The court reversed, holding that when a cause is dismissed for lack of prosecution and no reinstatement motion is filed within one month, the dismissal becomes final and the trial court loses jurisdiction over the subject matter. The defendant did not waive objections because he lacked knowledge of material facts, and subject matter jurisdiction cannot be conferred by waiver or consent.
“When a cause of action is dismissed for lack of prosecution and where a motion to reinstate the cause is not made within one month thereafter, the order of dismissal becomes final and the jurisdiction of the trial court over the subject matter and the cause is finally ended.”
Establishes the core holding that dismissal becomes final without timely reinstatement motion
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Join FLexlaw to unlock all legal intelligencePlaintiff's suit was dismissed for lack of prosecution under Rule 1.420(e). The plaintiff never moved to reinstate the case. Approximately nine and a …
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Plaintiff’s damage suit was dismissed for lack of prosecution under Rule 1.420(e), F.R.C.P., 30 F.S.A.1 Plaintiff never moved for its reinstatement. In this state of affairs and some nine and one-half months after dismissal, the case was tried to a jury over the defendant’s objection with a plaintiff’s verdict resulting. The cause was then reinstated by post trial order entered on the court’s own motion. This was done contrary to Rule 1.420(e) in that it was not timely because a motion was not made within one month after dismissal. Further, there was no showing of good cause on the part of the plaintiff. Defendant’s post trial protests as to reinstatement of the cause were unavailing. Defendant appeals the judgment. We reverse.
When a cause of action is dismissed for lack of prosecution and where a motion to reinstate the cause is not made within one month thereafter, the order of dismissal becomes final and the jurisdiction of the trial court over the subject matter and the cause is finally ended. Zukor v. Hill, Fla. 1956, 84 So.2d 554; Bowyer v. Cannon, Fla. 1953, 68 So.2d 564; B & L Trucking Co. v. Loftin, Fla. 1953, 63 So.2d 276; Ivy H. Smith Co. v. Moccia, Fla.1952, 59 So.2d 629.
In the order of reinstatement it was commented, “ * * * [T]he defendant has waived any right to a continuance of the trial and/or of any right to complain at this *410late date. * * * ” It is supposed that this observation was based upon the fact that the defendant responded to an alias summons which was served upon him some two and one-half months following the order of dismissal (the original summons was not served upon defendant and it does not appear that he received any notice of the dismissal proceeding), by filing an answer and participating in the pre-trial proceedings. So far as the record shows defendant’s objection was presented to the court as soon as he became aware of the order of dismissal and the lack as concerns the suit’s reinstatement — this being immediately prior to trial.
Was the trial court correct m finding a waiver by defendant? We think not. The most frequent and generally accepted definition of the term “waiver” is the intentional relinquishment of a known right, or the voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right. There can be no waiver unless the party against whom the waiver is invoked was in possession of all the material facts. Fireman’s Fund Insurance Company v. Vogel, Fla.App.1967, 195 So.2d 20, at 24. It is our view that defendant’s conduct under the circumstances can not be held to be a waiver because of his lack of knowledge of material facts such as the suit’s prior dismissal and lack of reinstatement.
Of greater importance is the fact that at the time of trial the court lacked jurisdiction over the subject matter and of the cause. In this situation there can be no waiver, as jurisdiction of the subject matter can not be conferred by consent, failure to object or waiver. An objection to this lack may be raised at any time. Roberts v. Seaboard Surety Co., 1947, 158 Fla. 686, 29 So. 2d 743; Winn & Lovett Grocery Co. v. Luke, 1945, 156 Fla. 638, 24 So.2d 310; Director General of Railroads v. Wilford, 1921, 81 Fla. 430, 88 So. 256. This is to be contrasted with jurisdiction over the person which may be achieved via waiver or consent. State ex rel. Associated Utilities Corp. v. Chillingworth, 1938, 132 Fla. 587, 181 So. 346.
The judgment here appealed is reversed and the cause remanded with instructions to vacate said judgment and the order of reinstatement.
Reversed.
McCAIN and REED, JJ., concur.
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Taylor v. Kenco Chem. & MFG. Corp. & Emerald Mfg. Co., Inc., 465 So. 2d 581 (Fla. 1st DCA 1985)…waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right. Gulf Life Insurance Company v. Green, 80 So. 2d 321 (Fla.1955); Gilman v. Butzloff, 155 Fla. 888, 22 So. 2d 263 (1945); Wilds v. Permenter, 228 So. 2d 408 (Fla. 4th DCA 1969). Waiver may be express, or implied from conduct or acts that lead a party to believe a right has been waived. Thomas N. Carlton Estate, supra; Davis v. Davis, 123 So. 2d 377 (Fla. 1st DCA 1960). However, when waiver is to be impl…
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City OF W. Palm Beach v. Palm Beach Cnty. Police Benevolent Ass'n, 387 So. 2d 533 (Fla. 4th DCA 1980)…n to arbitration proceedings. The jurisdiction of courts arises from constitutional, statutory or common law authority. The parties may not confer jurisdiction by waiver, failure to object, or consent, where none is given by law. Wilds v. Permenter, 228 So. 2d 408 (Fla. 4th DCA 1969); Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977). On the other hand, jurisdiction in arbitration proceedings is conferred by the agreement of the parties and is circumscribed by the terms of that agreement. Accordingly, juri…
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Gregorio Rodriguez v. State, 441 So. 2d 1129 (Fla. 3d DCA 1982)…. His “agreement” [*1137] that he be released did not constitute an estoppel. Waiver is the intentional or voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right. Wilds v. Permenter, 228 So. 2d 408, 410 (Fla. 4th DCA 1969). The choice confronting Rodriguez was to accept probation or return to jail. Because he was not released on bail, the only lawful alternative to jail, Rodriguez’s choice of probation was coerced rather than voluntary and did…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fireman's Fund Ins. Co. v. Vogel, 195 So. 2d 20 (Fla. 2d DCA 1967)
- Winn & Lovett Grocery Co. v. Luke, 156 Fla. 638 (Fla. 1945)
- The Dir. Gen. of Railroads v. Wilford, 81 Fla. 430 (Fla. 1921)
- Zukor v. Hill, 84 So. 2d 554 (Fla. 1956)
- Roberts v. Seaboard Sur. Co., 158 Fla. 686 (Fla. 1947)
- B & L Trucking Co., Inc. v. Loftin, 63 So. 2d 276 (Fla. 1953)
- Thornton v. Parker, 132 Fla. 532 (Fla. 1938)
- State v. Honorable C. E. Chillingworth, 132 Fla. 587 (Fla. 1938)
- Bowyer v. Cannon, 68 So. 2d 564 (Fla. 1953)