Little v. Sullivan

• Court: Florida Supreme Court
• Writing for the Court: THORNAL; DREW
• Citation: Little v. Sullivan, 173 So.2d 135 (Fla. 1965)
• Decision Date: 26 March 1965
• Docket Number: No. 33807,33807
• Parties: Carl O. LITTLE and Vera P. Little, his wife, Petitioners, v. Joseph P. SULLIVAN, Respondent.

Page 135

173 So.2d 135

Carl O. LITTLE and Vera P. Little, his wife, Petitioners, v. Joseph P. SULLIVAN, Respondent.

No. 33807.

Supreme Court of Florida.

March 26, 1965.

Fowler, White, Gillen, Humkey & Trenam and John L. Welborn, Miami, for petitioners.

Papy & Carruthers, Miami, for respondent.

THORNAL, Justice.

By petition for a writ of certiorari we have for review a decision of the District Court of Appeal, Third District, which comes to us with the certificate of the court that it passes upon a question thereby certified to be of great public interest. Little et al. v. Sullivan, 166 So.2d 697.

The ultimate question to be decided is whether Section 54.08, Florida Statutes, F.S.A., by its own force, constitutes 'good cause' for reinstating an action previously dismissed for failure to prosecute under Section 45.19(1), Florida Statutes, F.S.A.

The certificate of the District Court makes it unnecessary for us to explore jurisdictional facets of the problem presented. We proceed directly to the merits. Susco Car Rentals v. Leonard, Fla., 112 So.2d 832.

A complaint for damages was filed by respondent Sullivan against the petitioners Little on December 6, 1961. The cause proceeded through preliminary pleadings. According to a stipulation, the last 'action' in the prosecution was a pre-trial order entered May 23, 1962. On June 10, 1963, the trial judge entered an order dismissing the action for failure to prosecute over a period of one year. A motion to reinstate was filed by Sullivan on June 18, 1963. The trial judge entered an order reinstating the cause on July 10, 1963. The motion to reinstate was grounded upon the following:

(1) Sullivan's original attorney moved to Fort Lauderdale in November, 1962;

(2) The handling of the case was then taken over by an attorney who was a member of the Florida Legislature which had been in session from the first week in April 1963, to the date of the motion;

(3) Under Section 54.08, Florida Statutes, F.S.A., litigation is automatically continued for the duration of the Session when a party is represented by a legislator.

The trial judge concluded that the motion presented facts which constituted a 'good cause' sufficient to justify the reinstatement of the action under Section 45.19(1), supra. Ultimately there was a verdict awarding damages in favor of Sullivan. The District Court affirmed this holding. It is this decision which we now have for review.

Section 45.19(1), Florida Statutes, F.S.A., provides in part that an action shall be deemed abated for want of prosecution and shall be dismissed when '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 three years [one] [year], * * *' The section further provides '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.'

The cited statute is obviously intended to promote the expeditious disposition of litigation. It contains two basic component elements. It provides for dismissal upon inaction for a year showing a lack of prosecution for that period. It further provides for re-instatement after dismissal 'upon good cause shown' by petition filed within one month.

In regard to dismissal, the requirements of the statute are mandatory if it is demonstrated to the court that no action towards prosecution has been taken within a year. The trial judge has no discretion in the enforcement of this aspect of the statute. When the essential inaction is established, dismissal necessarily follows. May v. State, Fla., 96 So.2d 126; Adams Engineering Co. v. Construction Products Corp., Fla., 156 So.2d 497.

However, within 30 days after the order of dismissal, a party in interest may obtain reinstatement upon a showing of 'good cause'. In Adams, supra, we held that the statutory standard of 'good cause' for reinstatement requires the exercise of a sound judicial discretion. This is not an arbitrary or unrestrained discretion. It must have evidentiary support to establish the 'good cause'.

When a judicial discretion is allowed a trial judge, his exercise thereof will not be lightly regarded. On the other hand, the exercise of a judicial discretion is controlled by applicable principles of law and equity. Discretion is not available as a support of a conclusion in the face of a positive rule of law to the contrary. Ellard v. Godwin, Fla., 77 So.2d 617; McWhorter v. McWhorter, Fla.App., 122 So.2d 504.

The motion for reinstatement was grounded essentially on the contention that Sullivan's lawyer was a member of the 1963 Legislature, and that by virtue of Section 54.08, Florida Statutes, F.S.A., the action was automatically continued for the duration of the Session. If this were the rule, the movant would have been entitled to reinstatement of the cause. However, if continuance was not automatic under the statute then there was no supporting 'good cause' to justify reinstatement.

Section 54.08, Florida Statutes, F.S.A., reads as follows:

'All pending litigation before the courts of this state shall stand continued during any session of the legislature and for a period of time fifteen days prior to any session of the legislature and fifteen days subsequent to the...