EASTERN ELEVATOR, INC., PETITIONER,
v.
ESTHER C. PAGE ET AL., RESPONDENTS; ANTIOCH COLLEGE, AN OHIO EDUCATIONAL INSTITUTION, AND SUNRISE SHOPPING CENTER, INC., PETITIONERS, V. ESTHER PAGE ET AL., RESPONDENTS
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The court held that the filing of written interrogatories by a defendant constitutes a sufficient affirmative showing of prosecution to justify denial of a motion to dismiss for lack of prosecution.
Defendants moved to dismiss the action for lack of prosecution. The trial court denied these motions. Within the relevant one-year period, one defenda…
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The trial court entered its order denying motions which sought dismissal for lack of prosecution. Defendants timely filed two separate petitions for writ of certiorari seeking review of such order. These separate petitions have been consolidated for briefing, oral argument and disposition.
An order denying dismissal for lack of prosecution is an interlocutory order which may be reviewed by interlocutory appeal. Rule 4.2, F.A.R. 32 F.S.A. The rule does not preclude a party from applying to the court for the discretionary writ of certiorari to review such interlocutory order. In the instant case, the procedural route adopted by the petitioners has caused them no harm since our decision is rendered upon the merits of the question presented.
The record discloses that within a one-year period immediately prior to the filing of the motions to dismiss one of the defendants filed written interrogatories to be answered by the plaintiff. Although the plaintiff did not file or serve an answer to such interrogatories, we hold that the defendant’s filing of the written interrogatories constitutes sufficient affirmative showing of prosecution of the action to justify denial of a motion to dismiss filed under Rule 1.420(e) R.C.P., 30 F.S.A. Cf. Fund Insurance Companies v. Preskitt, Fla.App.1970, 231 So.2d 866; Cypress Corporation of Florida v. Smith, Fla.App.1969, 218 So.2d 481; Rosenfeld v. Glickstein, Fla.App.1967, 200 So.2d 242; Owens v. Ken’s Paint and Body Shop, Fla.App.1967, 196 So.2d 17; and, Musselman Steel Fabricators, Inc. v. Radziwon et al., Fourth District Court of Appeal, 250 So.2d 327.
Certiorari denied.
WALDEN, OWEN and MAGER, JJ., concur.
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E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)…DEKLE, Justice. In another “failure to prosecute” case, we are asked to review by conflict certi-orari another decision of the Fourth District Court of Appeal, at 250 So. 2d 326 (1971). It is alleged to conflict with the same prior decisions of this Court in Gulf Appliance Distributors, Inc. v. Long, 53 So. 2d 706 (Fla.1951), and Sroczyk v. Fritz, 220 So. 2d 908 (Fla.1969), as were asserted in Musselman Steel Fabricators, I…
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Musselman Steel Fabricators, Inc. v. Radziwon, 263 So. 2d 221 (Fla. 1972)…hether there was sufficient affirmative action pursuant to Rule 1.420(e), R.C.P., 30 F.S.A., to justify a denial of a motion to dismiss for failure to prosecute. It is noted that the further Fourth District case of Eastern Elevator, Inc. v. Page, at 250 So. 2d 326 (Fla. App. 4th 1971), cert. dischg. with opinion this day, 263 So. 2d 218 (Fla.1972); Fleming v. Florida Power Corp., 254 So. 2d 546 (Fla.App.2d 1971), cert. denied this day [*222] also at 262 So. 2d 447 (Fla.1972); and this Court’s recent opinion i…
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Bowl Am. Fla., Inc. v. Schmidt, 386 So. 2d 1203 (Fla. 5th DCA 1980)…utory appeal. Such orders may now only be reviewed, at the discretion of this court, by writ of common law certiorari. Previously, such orders apparently could be reviewed either by interlocutory appeal or certiorari. Eastern Elevator, Inc. v. Page, 250 So. 2d 326 (Fla. 4th DCA 1971). There was never an intent by amendment of the rule to abolish the writ.1 In the case before us, the applicable facts were: On July 28, 1978, the court furnished respondents with a notice to attorneys and parties that petitione…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Owens v. Ken's Paint AND Body Shop, 196 So. 2d 17 (Fla. 3d DCA 1967)
- Carthel James Rushing v. State, 218 So. 2d 481 (Fla. 3d DCA 1969)
- Rosenfeld v. Glickstein, 200 So. 2d 242 (Fla. 1st DCA 1967)
- Fund Ins. Cos. v. Sid Preskitt, 231 So. 2d 866 (Fla. 4th DCA 1970)
- Musselman Steel Fabricators, Inc. v. Radziwon, 250 So. 2d 327 (Fla. 4th DCA 1971)