NEFF MACHINERY, INC., APPELLANT,
v.
ALLIED ELECTRICAL COMPANY, INC., ET AL., APPELLEES
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Neff Machinery appealed the dismissal of its breach of contract action for want of prosecution. The appellate court reversed, holding that the trial court erred in dismissing the case because plaintiff demonstrated good cause for the delay, particularly given the court's own prior practice of setting trial dates after continuances.
The court held that the trial court erred in dismissing the cause for want of prosecution. The trial court's prior order postponing trial to a future date to be set by the court, combined with the court's established practice of setting trial dates after prior continuances, constituted good cause for the delay under Rule 1.420(e).
[1] A trial court may dismiss an action for want of prosecution if no action has been taken for a period of thirteen months, unless good cause is shown.
[2] A prior order of the court postponing a trial to a future date to be set by the court can constitute good cause for a lack of prosecution.
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Join FLexlaw to unlock all legal intelligence“Ordered and adjudged that the trial of this cause now set for March 4, 1968, be and the same is hereby postponed to a future date to be set by this court.”
The trial court's order granting the continuance, which the appellate court found created a reasonable expectation that the court would set a future trial date, thus constituting good cause for the subsequent delay.
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Join FLexlaw to unlock all legal intelligenceIn May 1966, Neff Machinery sued Allied Electrical Company for approximately $30,000 in damages to a leased mobile crane. After several continuances, …
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Plaintiff-appellant Neff Machinery, Inc., seeks review of an order dismissing its suit for want of prosecution pursuant to Rule 1.420(e) Florida Rules of Civil Procedure, 30 F.S.A.
In May, 1966, plaintiff brought an action against defendant-appellee Allied Electrical Company, Inc., as plaintiff alleged, to recover almost $30,000.00 for damages to a mobile crane which it had leased to defendant. Pleadings were completed after several continuances were granted, and the case was set for trial for a period beginning March 4, 1968. Plaintiff’s counsel required hospitalization at that time, and the parties stipulated to a further continuance. The trial court acting on the stipulation entered an order on March 4, 1968, stating:
“Ordered and adjudged that the trial of this cause now set for March 4, 1968, be and the same is hereby postponed to a future date to be set by this court.”
After the continuance was granted defendant, with leave granted, filed third party complaints against its insurance company and insurance agent. The third party defendants, the other appellees here, answered in February, 1970.
ín the order appealed the trial court found that the cause was once more at issue as of February 5, 1970, and that nothing in the action was done by any party subsequent to the answer of the last third party defendant on that date.1 On April 8, 1971, some fourteen months later, the trial court then entered its order dated April 8, 1971 providing for the dismissal of the action for lack of prosecution unless “good cause” was shown to the court. The trial court made a careful review of the record including the affidavit of plaintiff’s counsel together with memoranda, and the court held a hearing on April 22, 1971, to determine whether “good cause” within the meaning of Rule 1.420(e) had been demonstrated. By the order appealed the action was dismissed for want of prosecution for failure of appellant to demonstrate such good cause.
We express the view that Kizer v. Martin, Fla.App.1961, 132 So.2d 14 is controlling. In that case the court reversed a dismissal under the predecessor statute where no action was taken after the trial court wrote counsel a letter stating that the court would “at the appropriate time” set the cause for pretrial and trial. The instant cause presents a stronger case for finding such good cause because an order of the court was involved and in the past the court had, on its own initiative, set a trial date after each of two prior continuances.
Therefore, for the reasons stated and upon the authority of the Kizer case, supra, we hold that the trial court erred in dismissing the cause for want of prosecution.
Reversed and remanded for further proceedings.
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Premix-Marbeltite Sales Co., Inc. v. McRAE Plastering, Inc., 302 So. 2d 450 (Fla. 3d DCA 1974)…PER CURIAM. Affirmed. See Robertson v. Wilson, 59 Fla. 400, 51 So. 849 (1910); Kizer v. Martin, Fla.App.1961, 132 So. 2d 14; Neff Machinery, Inc. v. Allied Electrical Company, Inc., Fla.App.1972, 258 So. 2d 314.…
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Visuna v. Metro. Transit Auth. & Nathanial Billy Davis, 353 So. 2d 183 (Fla. 3d DCA 1977)…al. The duty to set the actions for trial remained. Megdell v. Adeff, 296 So. 2d 596 (Fla. 3rd DCA 1974); City of Miami v. Dade County, supra. Cf. Kizer v. Martin, 132 So. 2d 14 (Fla. 1st DCA 1961); Neff Machinery, Inc. v. Allied Electrical Company, 258 So. 2d 314 (Fla. 3rd DCA 1972). For the reasons stated, we hold good cause was shown to avoid dismissal for want of prosecution. The order of dismissal is reversed, and the cause remanded for further proceedings.…
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Sol Megdell v. Adeff, 296 So. 2d 596 (Fla. 3d DCA 1974)…e court would reset the case without further notice. Subsequently, the court dismissed the case. We hold that the trial judge abused his discretion, in view of this court’s holding in Neff Machinery, Inc. v. Allied Electrical Company, Fla.App.1972, 258 So. 2d 314 and the therein cited case of Kizer v. Martin, Fla.App.1961, 132 So. 2d 14. The instant case differs from the Neff Machinery Case in that no written order was entered by the trial judge when he stated that he would set the case without further notic…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kizer v. Martin, 132 So. 2d 14 (Fla. 1st DCA 1961)