SOL MEGDELL, APPELLANT,
v.
JACK ADEFF AND ROSE ADEFF, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A plaintiff appeals the dismissal of his civil action for failure to prosecute. The trial court dismissed the case under Florida Rule 1.420(e), but the appellate court reversed, finding the trial judge abused his discretion given representations by the former judge that the case would be reset without further notice.
The trial judge abused his discretion in dismissing the case. Although no written order was entered by the former judge, the unrefuted representations in the appellant's answer combined with the uncertainty created by reassignment of the case to a new judge warranted reversal.
[1] A trial court abuses its discretion by dismissing a cause of action for failure to prosecute when the plaintiff reasonably believed the court would reset the case without…
[2] A trial court should take judicial notice of the uncertainty created by the reassignment of a case from one judge to another when considering dismissal for want of prosec…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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.”
Establishes the legal standard and that the trial judge's dismissal was an abuse of discretion
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant filed suit in January 1970 and noticed the cause for trial. In February 1971, the trial judge set the case for jury trial beginning December…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Failure To Prosecute cases and more on FLexlaw
PEARSON, Judge.
The appellant who was the plaintiff in the trial court appeals an order dismissing his cause of action for failure to prosecute pursuant to rule 1.420(e), RCP, 30 F.S.A. The action was brought in January of 1970, and after an amended complaint and answer thereto the plaintiff noticed the cause for trial.
On February 10, 1971, the trial judge entered an order setting the case for jury trial for the period commencing the week of December 13, 1971. The case, however, was not tried at that time. Thereafter, pursuant to a joint motion of the parties, there was a substitution of the present appellee, the wife and executrix of the deceased defendant, as party defendant. Thereafter, a newly appointed judge was assigned to handle the cause pursuant to a reorganization of the Circuit Court of the Eleventh Judicial Circuit; see amended Article Five of the Florida Constitution.
On April 26, 1973, the substituted trial judge noticed the cause for dismissal pursuant to the above cited rule.
The appellant filed a written answer to the court’s motion alleging, among other things, that he had at the time that the prior judge passed the case assumed that the 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 notice of hearing.
However, the record shows as unrefuted the appellant’s answer and representations to the court concerning the nature of the former trial judge’s statement. This, coupled with the fact that the court should have taken judicial notice of the uncertainty created in this case by its reassignment from one judge to another, convinces us that there was error in dismissing the cause for want of prosecution.
Reversed and remanded for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Visuna v. Metro. Transit Auth. & Nathanial Billy Davis, 353 So. 2d 183 (Fla. 3d DCA 1977)…eafter for a period of more than one year, notwithstanding plaintiffs’ prior notice for trial and their continued and subsequent readiness for trial. That distinction is not material. 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…
-
Straubel v. Gobayra, 444 So. 2d 1022 (Fla. 3d DCA 1984)…t, if an indefinite continuance of a trial date has been ordered, the plaintiff will be well advised to renotice the case for trial, unless the trial court has in no uncertain terms relieved the plaintiff of such responsibility. See Megdell v. Adeff 296 So. 2d 596 (Fla.3d DCA 1974) (dismissal for failure to prosecute reversed where, after trial continued, trial judge stated that he would set the case for trial without further notice of hearing). “He hath a wisdom that doth guide his valour to act in safety.”…
-
Berger v. Penia, 596 So. 2d 1126 (Fla. 2d DCA 1992)…ate the cases, as well as all pleadings which contained the 1988 case number, should have been filed in the 1988 case file. The uncertainty caused by the failure to do so should not have resulted in the dismissal of the action. See Megdell v. Adeff, 296 So. 2d 596 (Fla. 3d DCA 1974). We reject the appellee’s contention that the court did not abuse its discretion because the appellant did not show cause at least five days before the hearing on the order to show cause. The record does not reflect that there wa…
Authorities Cited
- Kizer v. Martin, 132 So. 2d 14 (Fla. 1st DCA 1961)
- Neff Mach., Inc. v. Allied Elec. Co., Inc., 258 So. 2d 314 (Fla. 3d DCA 1972)