Eastern Elevator, Inc. v. Page
| Citation | 250 So.2d 326 |
| Decision Date | 18 June 1971 |
| Docket Number | Nos. 70--930,70--937,s. 70--930 |
| Parties | EASTERN ELEVATOR, INC., Petitioner, v. Esther C. PAGE et al., Respondents. ANTIOCH COLLEGE, an Ohio Educational Institution, and Sunrise Shopping Center, Inc., Petitioners, v. Esther PAGE et al., Respondents. |
| Court | Court of Appeal of Florida (US) |
Thomas B. Mimms, Jr., and W. M. O'Bryan of Fleming, O'Bryan & Fleming, Fort Lauderdale, for petitioner, Eastern Elevator, Inc., and respondent, Liberty Equity.
Sherouse & Virgin, Miami, for petitioners, Antioch College and Sunrise Shopping Center.
Bayard B. Sellars of Law Offices of Fritz Herman, Fort Lauderdale, for respondent, Esther C. Page.
The trial court entered its order denying motions which sought dismissal for lack of prosecution. Defendants timely filed two separate petitions for writ of certiorari seeking review of such order. These separate petitions have been consolidated for briefing, oral argument and disposition.
An order denying dismissal for lack of prosecution is an interlocutory order which may be reviewed by interlocutory appeal. Rule 4.2, F.A.R. 32 F.S.A. The rule does not preclude a party from applying to the court for the discretionary writ of certiorari to review such interlocutory order. In the instant case, the procedural route adopted by the petitioners has caused them no harm since our decision is rendered upon the merits of the question presented.
The record discloses that within a one-year period immediately prior to the filing of the motions to dismiss one of the defendants filed written interrogatories to be answered by the plaintiff. Although the plaintiff did not file or serve an answer to such interrogatories, we hold that the defendant's filing of the written interrogatories constitutes sufficient affirmative showing of prosecution of the action to justify denial of a motion to dismiss filed under Rule 1.420(e) R.C.P., 30 F.S.A. Cf. Fund Insurance Companies v. Preskitt, Fla.App.1970, 231 So.2d 866; Cypress Corporation of Florida v. Smith, Fla.App.1969, 218 So.2d 481; Rosenfeld v. Glickstein, Fla.App.1967, 200 So.2d 242; Owens v. Ken's Paint and Body Shop, Fla.App.1967, 196 So.2d 17; and, Musselman Steel Fabricators, Inc. v. Radziwon et al., Fourth District Court of Appeal, 250 So.2d 327.
Certiorari denied.
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Bowl America Florida, Inc. v. Schmidt, 79-439
...certiorari. Previously, such orders apparently could be reviewed either by interlocutory appeal or certiorari. Eastern Elevator, Inc. v. Page, 250 So.2d 326 (Fla. 4th DCA 1971). There was never an intent by amendment of the rule to abolish the writ. In the case before us, the applicable fac......
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Musselman Steel Fabricators, Inc. v. Radziwon, 41465
...a denial of a motion to dismiss for failure to prosecute. It is noted that the further Fourth District case of Eastern Elevator, Inc. v. Page, at 250 So.2d 326 (Fla.App.4th 1971), cert. dischg. with opinion this day, 263 So.2d 218 (Fla.1972); Fleming v. Florida Power Corp., 254 So.2d 546 (F......
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Licausi v. Airport Transp. Service, Inc.
...1.420(e), FRCP, 30 F.S.A., premature. Musselman Steel Fabricators, Inc. v. Radziwon, Fla.App.1971, 250 So.2d 327; Eastern Elevator, Inc. v. Page, Fla.App.1971, 250 So.2d 326; Fund Insurance Companies v. Preskitt, Fla.App.1970, 231 So.2d 866; Cypress Corporation of Florida v. Smith, Fla.App.......
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Eastern Elevator, Inc. v. Page
...'failure to prosecute' case, we are asked to review by conflict certiorari another decision of the Fourth District Court of Appeal, at 250 So.2d 326 (1971). It is alleged to conflict with the same prior decisions of this Court in Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.......