Fritz v. Sroczyk

• Decision Date: 03 October 1967
• Docket Number: No. I-373,I-373
• Citation: 202 So.2d 796
• Parties: Chester J. FRITZ, Appellant, v. Frederick Frank SROCZYK, a/k/a Fred Scrozyk, Appellee.
• Court: Florida District Court of Appeals

Page 796

202 So.2d 796

Chester J. FRITZ, Appellant, v. Frederick Frank SROCZYK, a/k/a Fred Scrozyk, Appellee.

No. I-373.

District Court of Appeal of Florida, First District.

Oct. 3, 1967.

Cliff B. Gosney, Jr., Daytona Beach, for appellant.

Dan R. Warren and Anthony J. Grezik, Daytona Beach, for appellee.

WIGGINTON, Chief Judge.

Defendant in the trial court has appealed a final judgment entered upon a jury verdict rendered in favor of the plaintiff. The sole point presented for our decision is whether the trial court erred in denying defendant's motion to dismiss the action for failure of plaintiff to prosecute within a period of one year during the pendency of the cause in the trial court.

It affirmatively appears from the record on appeal that after this suit was instituted no action was taken by the filing of pleadings, order of court, or otherwise in the prosecution of the cause during the period between April 20, 1965, and April 21, 1966. On the latter date defendant filed his motion to dismiss the cause for failure to prosecute pursuant to the provisions of the applicable statute authorizing dismissal under such circumstances. ¹ A hearing was held before the court on defendant's motion which culminated in an oral announcement by the judge that the motion would be denied and plaintiff's counsel was instructed to draft and present for execution a written order effectuating the court's ruling. No record of the proceedings held before the court at the hearing on the motion to dismiss was reported, and the record is silent as to what testimony or evidence, if any, was presented to and considered by the trial court as a basis for its ruling. No formal written order implementing the court's ruling was ever prepared, executed, or filed in the cause but the case proceeded to trial and rendition of the judgment appealed.

Defendant filed his notice of appeal on January 5, 1967, and assigned as error, among other things, the action of the court in denying defendant's motion to dismiss the case for want of prosecution by his oral ruling of June 14, 1966. The record on appeal was prepared and filed in the office of the Clerk of the Circuit Court on February 3, 1967, and appellant's brief in support of his appeal was filed in this court on March 1, 1967. By his brief appellant presents and argues the single point hereinabove mentioned based exclusively upon the contention that the trial court erred in denying his motion to dismiss the case for want of prosecution.

After the appeal was perfected and appellant's brief filed in this court, another hearing was conducted by the trial court which culminated in the rendition of an order nunc pro tunc dated March 30, 1967, in which it is recited that at the hearing held on defendant's motion to dismiss the cause for want of prosecution, it was found and determined by the court that this case had not been earlier placed on the court's trial calendar for trial because of a conversation between the judge's secretary and defendant's counsel in which the secretary was requested to not place the case on the trial calendar at that time, but to defer such action until another and separate case pending against defendant could later be set for trial at the same time, in which conversation plaintiff's counsel in no wise participated and for which plaintiff was not responsible. The order further recites that it was through inadvertence or oversight that plaintiff's counsel failed to prepare a written order reflecting the court's oral ruling at the time he was directed to do so following the hearing on June 14, 1966. The order further recites that it shall be made a part of the record on appeal in this cause and submitted to this court for its consideration in connection with the point presented by appellant for decision.

From the foregoing it affirmatively appears that even though no formal order was rendered by the trial court denying defendant's motion to dismiss the action for want of prosecution, nevertheless the motion was effectively denied by action of the court in placing the case on its calendar for trial, by submitting it to the jury for consideration, and by rendition of a final judgment based upon the verdict rendered by the jury following trial of the cause. The trial court's action in this regard is sufficiently clear and certain as to form a proper basis for assignment of error on this appeal.

As noted above, the order nunc pro tunc reciting findings and conclusions constituting what the trial court apparently considered to be good cause for denying defendant's motion to dismiss the case was not rendered until some two months after the filing of the notice of appeal and the vesting of jurisdiction of this case in this court. Upon the filing of the notice of appeal the trial court lost jurisdiction to take any further action in connection with the case except in the performance of a narrowly limited category of actions permitted by law. Although the order nunc pro tunc was unquestionably well intentioned and designed to further the administration of justice, we are of the view that it was not authorized and may not be considered in passing upon the point raised by appellant on this appeal.

Our reason for reaching the foregoing conclusion is controlled by the principles of law set forth in the case of Fulton v. Poston Bridge & Iron, Inc. ² decided by the Third District Court of Appeal. In Fulton an order was rendered by the trial court granting a new trial. The order failed to incorporate the ground or grounds upon which the order was based as required by the statute authorizing the granting of new trials. The party against whom the new trial was granted filed his notice of appeal assigning as error the failure of the order granting a new trial to recite the grounds on which it was based. After the appeal was taken the trial court entered a nunc pro tunc order in which it sought to supplement the original order by reciting the grounds on which the new trial was granted in conformity with the requirements of the statute. In holding that the nunc pro tunc order was ineffective to accomplish the purpose desired, and that it could not be considered by the appellate court in passing upon the point presented by the appellant in support of his appeal, Judge Charles Carroll, speaking for the court, said:

'Applicable here is the statement contained in the section of Corpus Juris Secundum cited above, to the following effect:

"While the appellate proceeding may cause the trial court to lose jurisdiction of the case it still retains jurisdiction of its record, if a court of record, and has inherent power to correct it, including the proper entry of judgment. This rule permits amendment of the record in the case of misprision of the clerk or where, through inadvertence or mistake, some matter has been omitted from the record, or some untrue statement inserted, or where the judgment entered contains misrecitals, and in other like cases. The power of correction is confined, however, to showing correctly the history of the proceedings before the appeal, and the lower court has no jurisdiction, pending an appeal by amendment of the record or proceedings or otherwise, to change the status of the case or to interfere with the rights of parties under the judgment or order.'

'Jurisdiction and control over the record which continues in the trial court during a portion of the pendency of an appeal, as provided for in rule 1.38, F.R.C.P., and rule 3.8, F.A.R., relate to corrections of the record or making the record show the truth as to the history of the proceedings before the appeal, and those rules do not authorize, after appeal, the making of orders to change the legal effect of the orders or judgments from which the appeal has been taken or to change the status of the case so as to interfere with the rights of an appellant as he may have asserted them on appeal.'

From the foregoing we are of the view that the trial court lacked jurisdiction to render the nunc pro tunc order after appeal was taken, the legal effect of which was to change the status of the case so as to interfere with the rights of appellant on his appeal.

Even if we were free to consider the findings and conclusions expressed in the nunc pro tunc order in support of the ruling denying defendant's motion to dismiss, we would nevertheless be required to hold that the denial of the motion to dismiss under the circumstances shown by the record before us was erroneous and would require reversal of the judgment appealed.

The statute with respect to the abatement of actions for failure of the plaintiff to prosecute, being F.S. § 45.19, F.S.A., is as follows:

'(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 (1) 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 (1) month after such order of dismissal.'

From the foregoing it is noted that the statute deals separately with the problems of dismissal and reinstatement. The first phase dealing with dismissal provides that the cause shall be deemed abated if no action is taken for a period of one year in the prosecution of the cause by the filing of pleadings order of court, or otherwise, and it shall be dismissed by the court upon its own motion or upon motion of any party interested. The second phase dealing...