Chrysler Leasing Corp. v. Passacantilli

• Decision Date: 09 February 1972
• Docket Number: No. 41323,41323
• Parties: CHRYSLER LEASING CORPORATION, a Delaware corporation, et al., Petitioners, v. Albert F. PASSACANTILLI, Jr., et al., Respondents.
• Court: Florida Supreme Court

Page 1

259 So.2d 1

CHRYSLER LEASING CORPORATION, a Delaware corporation, et al., Petitioners, v. Albert F. PASSACANTILLI, Jr., et al., Respondents.

No. 41323.

Supreme Court of Florida.

Feb. 9, 1972.

Rehearing Denied March 28, 1972.

Robert L. Dube and Jeanne Heyward, Miami, for petitioners.

Bolles, Goodwin, Ryskamp & Ware, Miami, for respondents.

McCAIN, Justice.

We are concerned in this case with an application of Rule 1.420(e), RCP 30 F.S.A., (dismissal for lack of prosecution) ¹ by the District Court of Appeal, Third District, opinion reported at 249 So.2d 518, which is alleged to conflict with Leithauser v. Harrison, 206 So.2d 222 (Fla.App.4th, 1968), Davant v. Coachman Properties, Inc., 118 So.2d 844 (Fla.App.2d, 1960), and Newman v. Bennefeld, 193 So.2d 482 (Fla.App.2d, 1967). We have jurisdiction.

The questioned decision reads:

'This appeal by the plaintiffs is from an order of the trial judge which upon his own motion dismissed the cause for lack of prosecution pursuant to RCP 1.420(e), 30 F.S.A. It appears that the trial judge was mistaken in his finding that, '. . . It appearing that no action, by any party to the cause, has been taken by the filing of pleadings, Order of Court, or otherwise, in this case for a period of more than one year prior to the date of this order . . .,' therefore, we reverse.

'An examination of the record reveals that in a response to the trial judge's renotice of the hearing on the court's motion for order of dismissal, attorney for the plaintiff-appellant filed an affidavit in which he set forth that one of the plaintiff had suffered a severe heart attack and stroke but that all of the plaintiffs were now ready to proceed to trial at any time the court would set the trial. Although this tender of trial did not technically comply with the court's last order continuing trial because of the illness of the same plaintiff, It nevertheless amounted to an offer of immediate trial and as such was a pleading in the cause.

'Therefore, it appearing that the trial court based its dismissal upon a mistaken finding as to the posture of the cause before it, the order appealed is reversed and the cause remanded for an order setting the cause for trial as expeditiously as can be done.

'Reversed and remanded.' (Emphasis added.)

The District Court's opinion has reference to the following sequence of events which occurred in the trial court: (1) June 30, 1969: a continuance was granted by the trial court because plaintiff-respondent suffered a heart attack or stroke (the record is unclear on this point) and was unable to proceed with trial; (2) October 15, 1970: a 'Re-Notice of Hearing on Motion for Order of Dismissal' was sent to the parties stating that unless plaintiffs could show good cause in writing why the action should remain pending at least five days before hearing, the cause would be dismissed for want of prosecution; (3) October 19, 1970: in response to the October 15 notice, plaintiff-respondent filed an affidavit reiterating that one of the plaintiffs suffered a heart attack in 1969, but that she had now recovered and would be able to proceed to trial immediately; (4) October 29, 1970: the trial court entered an order of dismissal pursuant to Rule 1.420(e) RCP.

Based on the above facts, the District Court reversed the order of dismissal, concluding that the October 19, 1970 affidavit constituted activity within the meaning of Rule 1.420. Thus, 'action' under Rule 1.420(e) was defined by the District Court as including a pleading submitted Subsequent to a motion to dismiss for want of prosecution. On this petition, therefore, we must initially determine whether such a result comports with the intent and purpose of Rule 1.420(e) as reflected in the existing body of case law. We conclude that it does not.

Prior to the adoption of Rule 1.420(e), RCP, an involuntary dismissal for want of prosecution was governed by Fla.Stat. § 45.19, F.S.A., repealed in 1967 by Chapter 67--254, Laws of Florida. Section 1 of that statute provided:

'(1) All actions at law or suits in equity pending in the several courts of the state, and instituted subsequent to 12:00 noon, October 1, 1947, in which there shall not affirmatively appear from some action taken by filing of pleadings, order of court, or otherwise, that the same is being prosecuted, for a period of one year, shall be deemed abated for want of prosecution and the same shall be dismissed by the court having jurisdiction of the cause, upon its own motion or upon motion of any person interested, whether a party to the action or suit or not, with notice to opposing counsel, provided that actions or suits dismissed under the provisions hereof may be reinstated by petition upon good cause shown to the court filed by any party in interest within one month after such order of dismissal.' ²

Under Fla.Stat. § 45.19, F.S.A., a defendant or the court on its own motion could seek dismissal of the cause on the ground that plaintiff had failed to actively prosecute the action for a period of one year preceding the date the motion was made; if, at the hearing on the motion, plaintiff failed to establish that he had prosecuted the action by pleadings, order of court or otherwise, dismissal was automatic and mandatory. Plaintiff could then, however, petition for reinstatement of the action within one month if he could show good cause for his failure to prosecute within the preceding year. This entailed a second hearing directed to the question of good cause.

In contrast, Rule 1.420(e) reduces the two hearing requirement of the statute to one hearing at which the existence of active prosecution and/or good cause for failure to prosecute may be considered and determined. LaCoe's Florida Pleading, Practice and Legal Forms differentiates the statute and the rule in the following manner:

'. . . Subdivision (e) is changed to combine the former double hearing procedure so that dismissal for lack of prosecution and reinstatement are considered and determined at the same hearing. The change contemplates that a motion for dismissal for lack of prosecution will be granted unless the adverse party shows good cause in writing why the action should remain pending. If the court finds good cause is shown, the action will not be dismissed and reinstated. The motion will simply be denied. The change in subdivision (e) is not intended to change any of the decisions construing what constitutes lack of prosecution.' (N. LaCoe, Florida Pleading, Practice and Legal Forms Annotated, Vol. II, at 641 (2d ed. 1971)) (Emphasis supplied.)

Essentially, then, the rule streamlines the procedure by which lack of prosecution may be determined, but does not change the substantive requirements for avoiding dismissal. When a motion to dismiss under the rule is made a party must still show either active prosecution within the preceding year, or good cause for his failure to prosecute. Sroczyk v. Fritz, 220 So.2d 908 (Fla.1969); Barrentine v. Vulcan Materials Co., 216 So.2d 57 (Fla.App.1st, 1968); All State Building Materials, Inc., v. Peoples National Fund, Inc., 219 So.2d 464 (Fla.App.1st, 1969); Dade County v. Moreno, 227 So.2d 548 (Fla.App.3rd 1969).

Turning to the issue presented, in our view neither the statute nor the rule contemplates that a party may show 'prosecution' by filing a pleading after a motion to dismiss is made by the other side. See Leithauser v. Harrison, Supra; Davant v. Coachman Properties, Inc., Supra; and Newman v. Bennefeld, Supra. ³ The underlying purpose of the rule, (as of its predecessor, Fla.Stat. § 45.19, F.S.A.), is to expedite the course of litigation and keep dockets as nearly current as possible by penalizing those who would allow litigation to become stagnant. Dobson v. Crews, 164 So.2d 252 (Fla.App.1st, 1964), affirmed 177 So.2d 202; May v. State ex rel. Ervin, 96 So.2d 126 (Fla.1957); and Sudduth Realty Co. v. Wright, 55 So.2d 189 (Fla.1951). To permit a party to show 'action' by filing a pleading subsequent to a motion to dismiss for want of prosecution would effectively emasculate the rule by eliminating its penalty aspect. A party could delay the progress of the action for an indefinite period of time in the knowledge that when his adversary moved to dismiss under the rule, he could prevent dismissal merely by filing some pleading, motion or affidavit. That is, a party could avoid dismissal in every case by acting after the motion was made, whether or not he had prosecuted the action during the previous year, or could show good cause for his failure to do so. The threat of dismissal would cease to have any real deterrent effect in terms of requiring a party to keep a case moving. Accordingly, we conclude that the District Court erred in determining that plaintiff-respondent's October 19 affidavit did or could constitute 'action' under Rule 1.420(e), and the language in the opinion of that court so holding is hereby expunged.

However, in view of certain facts made a part of the record before the District Court but not mentioned in the opinion of that court, we conclude that plaintiff's complaint was correctly reinstated by the District Court (although for an erroneous reason), and it is therefore unnecessary to vacate the decision below.

The record reveals that on July 17, 1970, more than one year after the continuance of June 30, 1969, but prior to the October 15, 1970 'Re-Notice of Hearing' considered by the District Court, the...