Fields v. Fields, S--405
| Decision Date | 26 March 1974 |
| Docket Number | No. S--405,S--405 |
| Parties | Alan B. FIELDS, Jr., et al., Appellants, v. Marian C. FIELDS, etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Alan B. Fields, Jr., of Dowda, Hedstrom & Fields, Palatka, for appellants.
John P. McCoy, of Cobb, Cole, Sigerson, McCoy, Bell & Bond, Daytona Beach, for appellees.
On December 30, 1972 the lower court entered an order entitled 'Order of Dismissal Nunc Pro Tunc', reciting that the order was being entered for failure to prosecute pursuant to Rule 1.420(e), Florida Rules of Civil Procedure, 30 F.S.A. The sole issue on this appeal is the propriety of the entry of that order.
The record reveals that a complaint was filed on December 1, 1967, thereafter the normal and customary pleading procedure was accomplished, including the filing of an answer on February 29, 1968 and answers to requests for admissions on March 5, 1968. The next entry on the docket sheet is a motion for dismissal for failure to prosecute which was filed on December 22, 1969 and a notice of a hearing thereon scheduled for January 12, 1970, which was also filed on December 22, 1969. It appears therefore that well over a year had elapsed between the last entry on the docket sheet and the motion to dismiss for failure to prosecute. However, the record reveals that on March 6, 1969 (one year and one day following the date of the filing of the answers to requests for admissions, but less than a year before the filing of the motion to dismiss for failure to prosecute) there was filed before the Court a pleading entitled and a notice of hearing thereon and a further pleading entitled 'Waiver on Filing of Affidavit' and a lengthy affidavit attached thereto. For some unexplained reason, but as clearly reflected by the record on appeal, those documents were not filed in the office of the clerk of the circuit court until May 12, 1972. (The record does not reveal the entry of any order on the motion to dismiss for failure to prosecute which, as aforesaid, was filed on December 22, 1969.) On May 12, 1972 there was also filed with the clerk of the circuit court a notice signed by the circuit judge dated May 8, 1972 directed to the attorneys of record for the parties which notice stated:
'You, and each of you, are hereby notified that the undersigned proposes to dismiss the above styled cause of action on June 16, 1972, at 2:00 p.m. in Chambers in DeLand, Volusia County, Florida, for failure to prosecute as provided by Florida Civil Procedure Rule 1.420(e).'
It will be noted that above quoted notice did not contain any language requiring the showing of cause as to why the action should remain pending. Neither does the record reveal that any hearing was held on June 16, 1972.
On May 15, 1972, there was filed a notice addressed to the defendant's attorneys noticing the deposition of the plaintiff Marian C. Fields on June 1, 1972. On June 14, 1972 the deposition of Marian C. Fields was filed. On June 19, 1972 plaintiffs filed a pleading entitled 'Motion to Strike Answer of Defendant and for Relief from Order Proposing Dismissal.' On July 5, 1972 plaintiff's attorneys filed a notice of a hearing scheduled for September 15, 1972 on the last mentioned motion. An amended notice changing the date to October 27, 1972 was filed on September 7, 1972.
The state of the pleadings being as above recited, a motion was filed by the attorneys for the defendant on September 12, 1972 entitled 'Motion for Entry of Order of Dismissal Nunc Pro Tunc', to which motion was attached a copy of what purports to be an order of dismissal which is dated January 12, 1970 conformed with the signature of the circuit judge but which does not appear to have been filed. Said motion recites that said order of dismissal was signed on January 12, 1970 in the presence of the defendant's attorney, that following the signing of said order the said attorney rendered a bill to his client and was paid in full and was discharged and that he has had no contact with his client for more than two years and does not know her whereabouts.
On September 12, 1972 there was filed a notice of hearing on the defendant's 'Motion for Entry of Order of Dismissal Nunc Pro Tunc' which hearing was scheduled for October 27, 1972. On October 9, 1972 there was filed a second amended notice of...
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