Berdeaux v. Eagle-Picher Industries, Inc., EAGLE-PICHER
| Decision Date | 11 December 1990 |
| Docket Number | No. 90-94,EAGLE-PICHER,90-94 |
| Citation | 575 So.2d 1295 |
| Parties | 15 Fla. L. Weekly D2973, 16 Fla. L. Weekly 321 Woodrow BERDEAUX and Louise Berdeaux, et al., Appellants, v.INDUSTRIES, INC., et al., Appellees. |
| Court | Florida District Court of Appeals |
Ferraro & Associates and James L. Ferraro and Marjorie N. Salem, Miami, for appellants.
Blaire & Cole and Susan J. Cole, Coral Gables, Louise H. McMurray, Miami, for Eagle-Picher Industries, Inc.
Blackwell & Walker and Kathleen M. Salyer, Miami, for Owens-Corning Fiberglas, Inc.
Kubicki, Draper, Gallagher & McGrane and Betsy E. Gallagher, Miami, for W.R. Grace & Co.
Shutts & Bowen and Robert P. Major, Miami, for Georgia-Pacific Corp.
Wolpe, Leibowitz, Berger & Brotman and Steven R. Berger, Miami, and Bradley H. Trushin, Miami Beach, for Celotex Corp.
Before JORGENSON, LEVY and GODERICH, JJ.
Nine asbestos-litigation plaintiffs appeal the trial court's order dismissing their actions, without prejudice, for failure to serve the defendants within 120 days subsequent to the filing of their complaints. These nine asbestos-litigation complaints were filed between January of 1987 and March of 1988. The defendants remained unserved until August and September of 1989. On September 25, 1989, the defendants filed a motion to dismiss for failure to effect timely service pursuant to Florida Rule of Civil Procedure 1.070(j). Only one defendant, "Flintkote", was still unserved at the time the motion was filed. In its December 8, 1989 Order, the trial court dismissed all nine actions, without prejudice, for the plaintiffs' failure to comply with Rule 1.070(j). For the following reasons we hold that the trial court erred in dismissing all nine actions for all defendants where service was effected prior to the filing of the Motion to Dismiss. However, defendant Flintkote was properly dismissed by the trial court in all nine actions because service was not properly effected on that particular defendant prior to the Motion to Dismiss.
Florida Rule of Civil Procedure 1.070(j), as amended, states:
(j) Summons--Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court's own initiative after notice or on motion.
The effective date of Rule 1.070(j) was January 1, 1989. All nine of the actions in this case were pending at the time this amended rule took effect. The plaintiffs below urge that Rule 1.070(j) is not applicable to these actions because Rules of Court are to be applied prospectively, absent an express wording of an intention to the contrary. Their argument would suggest that cases already pending at the effective date of an amended rule would not be subject to its requirements.
The defendants below argue that Rule 1.070(j) is applicable to the nine cases while still affording a prospective treatment. They urge this court ...
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...555 So.2d 367 (Fla. 3d DCA 1989).4 See Morales v. Sperry Rand Corp., 578 So.2d 1143 (Fla. 4th DCA 1991), and Berdeaux v. Eagle-Picher Industries, 575 So.2d 1295 (Fla. 3d DCA 1990).5 See e.g. Hartford Acc. and Indem. Co. v. U.S.C.P. Co., 515 So.2d 998 (Fla. 4th DCA 1987); Siegel v. Abramowit......
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Santmyer v. Orange Paving and Const. Co., 91-2037
...Schafer, 582 So.2d 121 (Fla. 3d DCA 1991); Morales v. Sperry Rand Corp., 578 So.2d 1143 (Fla. 4th DCA 1991); Berdeaux v. Eagle-Picher Ind., Inc., 575 So.2d 1295 (Fla. 3d DCA 1991). Accordingly, we dismiss this petition for certiorari on the sole ground that we lack jurisdiction, since the p......
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Morales v. Sperry Rand Corp.
...good faith and reasonable efforts to secure timely service. We recognize that in the recent case of Berdeaux v. Eagle-Picher Industries, Inc., 575 So.2d 1295 (Fla. 3d DCA 1990) the court reached a contrary result by deciding that the rule should not be enforced where service is perfected pr......
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Pearlstein v. King, s. 79529
...petition for review of King v. Pearlstein, 592 So.2d 1176 (Fla. 2d DCA 1992), because of conflict with Berdeaux v. Eagle-Picher Industries, 575 So.2d 1295 (Fla. 3d DCA 1990), review denied, 589 So.2d 294 (Fla.1991), disapproved on other grounds, Morales v. Sperry Rand Corp., 601 So.2d 538 (......