Flagship Nat. Bank of Miami v. Testa, No. 83-11

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Before SCHWARTZ; SCHWARTZ
• Citation: 429 So.2d 69
• Parties: FLAGSHIP NATIONAL BANK OF MIAMI, Petitioner, v. The Honorable Thomas A. TESTA, Gray Distribution Systems, Inc., GDS, Inc., Gray Tobacco Company, Inc., Samuel Gray and Marilyn Gray, Respondents.
• Docket Number: No. 83-11
• Decision Date: 05 April 1983

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429 So.2d 69 FLAGSHIP NATIONAL BANK OF MIAMI, Petitioner,
v.
The Honorable Thomas A. TESTA, Gray Distribution Systems,
Inc., GDS, Inc., Gray Tobacco Company, Inc.,
Samuel Gray and Marilyn Gray, Respondents. No. 83-11. District Court of Appeal of Florida,
Third District. April 5, 1983.

Therrel, Baisden, Stanton, Wood & Setlin and Julian R. Benjamin, Miami Beach, for petitioner.

Thomas J. McLaughlin, Miami, for Judge Thomas A. Testa.

Greenfield & DuVal and Harvie DuVal, North Miami, for remaining respondents.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.

SCHWARTZ, Chief Judge.

Pursuant to the agreement of the parties, the lower court, sitting non-jury, conducted a full two-day trial on the issue of whether a previous settlement agreement should be set aside. After receiving extensive post-trial memoranda, however, the trial judge sua sponte entered an order declining to rule on the matter and requiring instead

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that it be determined by a jury in a separate, subsequent trial. One of the parties ¹ has filed this petition for a writ of mandamus which seeks essentially that the trial court be directed itself to resolve the controversy. We grant the writ.

It is a legal shibboleth--and, uncommonly, an accurate one--that while a judge may not be told ahead of time how to rule, mandamus lies to require that he rule one way or the other, if there is no justification that the ruling be withheld. In re Grossmayer, 177 U.S. 48, 20 S.Ct. 535, 44 L.Ed. 665 (1900); Steccone v. Morse-Starrett Products Co., 191 F.2d 197 (9th Cir.1951), and cases collected at note 5; 52 Am.Jur.2d Mandamus §§ 342, 344 (1970); 49 C.J.S. Judgments § 101 (1947); see Department of Business Regulation v. Hyman, 417 So.2d 671, 673 (Fla.1982); City of Miami v. Southeast First National Bank of Miami, 320 So.2d 836 (Fla. 3d DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976). As is said generally in 35 Fla.Jur.2d Mandamus and Prohibition § 81 (1982):

If a lower court, without sufficient reason, neglects or refuses to act on a matter within its jurisdiction, properly brought before it, mandamus will issue at the instance of one entitled to invoke the remedy, to compel it to assume jurisdiction and proceed to a determination of the cause, unless the aggrieved party has an adequate remedy by appeal. [footnotes omitted]

This principle applies here.

The trial judge apparently based his abstention on the ground that he thought it preferable that a jury...