RUPERT J. LINDQUIST, APPELLANT,
v.
MERILYN WILLIAMS, APPELLEE
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The court considered appeals from a personal injury action where jury verdicts were found to be inconsistent, specifically regarding a plaintiff's award and a defendant's cross-claim.
The court acknowledged the inconsistency of the jury verdicts but did not definitively rule on the waiver issue as presented in the incorrect brief, focusing instead on the inconsistency itself.
[1] An action may be dismissed for failure to prosecute if no action has been taken for a period of one year, unless good cause is shown in writing at least five days before…
[2] A motion to set a case for jury trial filed after a motion to dismiss for failure to prosecute has been filed does not, by itself, constitute good cause to prevent dismis…
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Join FLexlaw to unlock all legal intelligenceIn a multi-car accident, the jury found both defendants (Smith and Lindquist) liable to the plaintiff (Covert) but found Lindquist not liable on his c…
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This is an interlocutory appeal by appellant Rupert J. Lindquist, defendant below, from an order denying his motion to dismiss for failure of appellee, Merilyn Williams, plaintiff below, to prosecute her case for over one year.
The suit was originally begun in the Pi-nellas County Circuit Court in an action brought by Williams against Lindquist. During the progress of the action Williams, on July 22, 1970, filed and served upon Lindquist a request for admissions under the applicable Florida Rules of Civil Procedure. No further progress was made in the case until August 9, 1971, on which date Lindquist filed his motion for dismissal of the cause for failure to prosecute within the one year period, and on the same day filed and served his notice of hearing on the motion to dismiss. On the following day, August 10, 1971, Williams filed and served upon Lindquist her motion that the case “be set for jury trial”. On September 10, 1971, the Court entered order finding that Williams- had filed her motion for trial subsequent to Lindquist’s motion for dismissal but prior to hearing upon Lindquist’s said motion for dismissal. The Court in its order then construed Williams’ motion for trial “as showing good cause why the . . . action should not be dismissed”, whereupon the motion for dismissal for lack of prosecution was denied. It is from this order of denial that Lindquist appeals. In our opinion the Court was in error in denying the motion for dismissal, and therefore reverse.
R.C.P. 1.420(e), 30 F.S.A., as amended effective October 1, 1968, provides:
“(e) Failure to Prosecute. All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court or otherwise for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing why the action should remain pending at least five days before the hearing on the motion.”
The above rule 1.420(e) is substantially the same as F.S. § 45.19(1) F.S.A. which it superseded. But as observed by the 3rd District Court in Dade County v. Moreno, Fla.App.1969, 227 So.2d 548:
“Although Rule 1.420(e) has superseded § 45.19(1) and provides for a slightly *900different practice upon the presentation of a motion to dismiss for lack of prosecution, the prior opinions are persuasive as to the meaning of the terms employed.”
Thus, as stated by the 4th District Court in Laug v. Murphy, Fla.App.1968, 205 So.2d 695:
“Certainly the standard of ‘good cause’ required for reinstatement under Section 45.19 requires the exercise of sound judicial discretion. But this is not an arbitrary or unrestrained discretion.
The necessary good cause must appear by the petition for reinstatement, and must be established by evidentiary support.
Neither the fact that a case is ready to be set for trial, the fact that the dismissal will cause severe hardship, nor the fact that the parties have unsuccessfully negotiated for settlement, constitutes good cause for reinstatement within the intendment of F.S.1963, Section 45.-19(1), F.S.A.”
Accord: Little v. Sullivan, Fla.1965, 173 So.2d 135; Fort Walton Lumber & Supply Co. v. Parish, Fla.App.1962, 142 So.2d 346; Moore v. Gannon, Fla.App.1965, 178 So.2d 618; cf. Eastern Elevator, Inc. v. Page, 263 So.2d 218, Supreme Court opinion filed May 10, 1972.
Dismissal of a cause for failure to prosecute within the requisite time, and refusal to reinstate, even though the case had already been previously set for trial, was upheld in Davant v. Coachman Properties, Fla.App.1960, 118 So.2d 844, 80 A.L.R.2d 1396; Beck v. Humkey, Fla.App.1962, 146 So.2d 613.
If the foregoing law is applicable to the case at bar, and we hold it is, certainly the holding of the lower Court that it had “construed [Williams’] motion to set case for jury trial as showing good cause why the . . . action should not be dismissed” was error.
Accordingly it follows that the interlocutory order appealed from denying Lind-quist’s motion for dismissal should be reversed.
It is so ordered.
LILES and MANN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Carter v. DeCARION, 400 So. 2d 521 (Fla. 3d DCA 1981)…tween the parties and the necessity of substituting counsel for appellant constituted good cause. Neither settlement negotiations, Steisel v. Birnholz, 313 So. 2d 125 (Fla. 3d DCA 1975), cert. denied, 330 So. 2d 14 (Fla.1976); Lindquist v. Williams, 262 So. 2d 899 (Fla. 2d DCA 1972), nor problems in obtaining counsel constitute good cause. Cf. Florida Power & Light Co. v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973) (neither change of attorneys nor office error by attorney constitute good cause). Appellant has f…
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Allstate Ins. Co. v. Bucelo, 650 So. 2d 1128 (Fla. 3d DCA 1995)…CA 1981), rev. denied, 412 So. 2d 464 (Fla.1982); American Eastern Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980); Steisel v. Bimholz, 313 So. 2d 125 (Fla. 3d DCA 1975), cert. denied, 330 So. 2d 14 (Fla.1976); Lindquist v. Williams, 262 So. 2d 899 (Fla. 2d DCA 1972). We therefore reverse the order reinstating this lawsuit and remand with instructions to the trial court to enter an order of dismissal. . The trial court's order setting aside its order of dismissal after the time for rehearin…
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Spector v. City OF Miami Beach, 350 So. 2d 565 (Fla. 3d DCA 1977)…PER CURIAM. Reversed. Fla.R.Civ.P. 1.420(e); Little v. Sullivan, 173 So. 2d 135 (Fla.1965); Newman v. Bennefeld, 193 So. 2d 482 (Fla. 2d DCA 1967); Lindquist v. Williams, 262 So. 2d 899 (Fla. 2d DCA 1972).…
Authorities Cited
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Little v. Sullivan, 173 So. 2d 135 (Fla. 1965)
- Davant v. Coachman Props., Inc., 118 So. 2d 844 (Fla. 2d DCA 1960)
- Laug v. Murphy, 205 So. 2d 695 (Fla. 4th DCA 1968)
- City OF Madeira Beach v. Hogan, 227 So. 2d 548 (Fla. 2d DCA 1969)
- Fort Walton Lumber & Supply Co. v. J. R. Parish, Jr., 142 So. 2d 346 (Fla. 1st DCA 1962)
- Gerhard T. Beck and Eva Carol Beck v. Humkey, 146 So. 2d 613 (Fla. 1st DCA 1962)
- Moore v. Gannon, 178 So. 2d 618 (Fla. 3d DCA 1965)