Reilly v. Fuss

• Court: Florida District Court of Appeals
• Writing for the Court: WHITE; ANDREWS, J., and McCORD, GUYTE P., Jr.
• Citation: Reilly v. Fuss, 170 So.2d 475 (Fla. App. 1964)
• Decision Date: 02 December 1964
• Docket Number: No. 4451,4451
• Parties: LaVonne D. REILLY, a widow, Appellant, v. Carl FUSS, Sr., Worthington Seese, R. B. Leonard and Emily H. Webster, Executrix of the Estate of Winfield S. Webster, Deceased, Appellees.

Page 475

170 So.2d 475

LaVonne D. REILLY, a widow, Appellant, v. Carl FUSS, Sr., Worthington Seese, R. B. Leonard and Emily H. Webster, Executrix of the Estate of Winfield S. Webster, Deceased, Appellees.

No. 4451.

District Court of Appeal of Florida, Second District.

Dec. 2, 1964.

Rehearing Denied Jan. 13, 1965.

Donald J. Lunny, of Sutton, James & Singer, Ft. Lauderdale, for appellant.

K. Odel Hiaasen, of McCune, Hiaasen, Crum & Ferris and Carey, Goodman, Terry, Dwyer & Austin, Ft. Lauderdale, for appellees.

WHITE, Acting Chief Judge.

Plaintiff appeals an adverse final judgment of 28 August 1963 entered after denial of her petition for reinstatement of the cause on 25 July 1963. A prior order of 15 May 1963 had dismissed the cause, an action at law, 'without prejudice' for lack of prosecution . ¹

Before getting to the merits we note the defendant's contention that the appeal is untimely because it was not taken from the order dismissing the cause dated 15 May 1963. This contention is without substance. The orders of 15 May 1963 and 25 July 1963 were interlocutory orders at law and therefore not appealable. ² The petition was timely and the subsequent 'final judgment' was properly made the subject of the notice of appeal. See Carn v. Quarles, Fla.App.,App.1963, 157 So.2d 536; National Surety Corp. v. Grahn, Fla.App., 1952, 57 So.2d 457.

Getting to the merits, the record discloses that the plaintiff filed her action as the surviving widow of Walter E. Reilly who died in an airplane crash. The original complaint was filed 28 April 1961 and the case was actively contested until 31 January 1962. Nothing more was 'officially made of record' for one year and four days when, on 4 February 1963, the defendants moved for dismissal for want of prosecution.

In response to the motion to dismiss the plaintiff submitted an affidavit of her Des Moines, Iowa, attorney, her own affidavit and a letter from the Rector of St. Mark's Episcopal Church in Fort Lauderdale purporting to show that during the interim in question the plaintiff and her attorneys were in fact 'actively engaged' in prosecuting the case. According to these instruments the involved airplane was operated by a strdent pilot and the plaintiff had encountered difficulty in ascertaining the identity and location of the deceased student pilot's instructor. In first granting the motion to dismiss the cause without prejudice the trial court noted:

'A. That the last entry appearing in the court file prior to the docketing of defendants' motion to dismiss on February 4, 1963, is the deposition of the plaintiff taken by the defendants on January 25, 1962, and filed on January 31, 1962.

'B. That the actions of the plaintiff and her counsel as reflected in the three exhibits aforesaid in seeking to discover the name of a witness is not an affirmative showing of such act as will stay the running of the one year period provided by said Section 45.19(1). Railway Express Agency v. Hoagland (Fla.App.,1952), 62 So.2d 756; Morrison v. Chambers (Fla.App.,1955), 82 So.2d 594; and Davant v. Coachman Properties, Inc. (Fla.App.,Appeals 1960), 118 So.2d 844 [80 A .L.R.2d 1396].

'C. That the 'good cause' to be shown by the plaintiff which would justify the Court in denying the motion to dismiss is the same as must be shown in order to have the case reinstated as provided by the last clause of the aforesaid Statute. Gulf Appliance Distributors, Inc. v. Long, et al. (Fla.App.,1951), 53 So.2d 707.

'D. That the plaintiff's showing does not constitute good cause why the motion to dismiss should not be granted. May v. State (Fla.App.,1957), 96 So.2d 126; Allen v. Gaither (Fla.App.,Appeals 1959), 112 So.2d 855; Fort Walton Lumber Co. v. Parrish (Fla.App.,Appeals 1962), 142 So.2d 346, and cases cited following finding (B) above.

'E. That this Court has not overlooked the recent unreported Supreme Court of Florida decision, filed April 24, 1963, being Case No. 31, 943, Adams Engineering Co., Inc. v. Construction Products, Corporation, et al., which decision granted certiorari and quashed the Third District Court decision in the case of the same style reported at 141 So.2d 300, which District Court decision is cited by defendant. The Supreme Court, in its decision, held that the activity of the appellant plaintiff in asking the Clerk, within the year's limitation period, to set the cause on the trial docket, all of which appeared in the Court file and which facts were peculiarly within the knowledge of the trial judge, does constitute good cause within the meaning of the Statute.' (Emphasis added.)

Within thirty days the plaintiff petitioned for reinstatement inasmuch as the statute of limitations could be pleaded against a new action. At the hearing on the petition, testimony was taken from the Iowa attorney and the plaintiff as to the investigative activity and methods employed in 'prosecuting' the case. The petition urges that the abatement statute does not place an attorney under the unreasonable obligation to file a pleading which he in good conscience feels to be improper in form and purpose merely to have the court records affirmatively reflect that the case is being prosecuted; that such a requirement would unreasonably burden a case record with work product information which otherwise could be demonstrated to the court should occasion require; and that active prosecution ³ can be affirmatively shown althouth not specifically recorded.

At the conclusion of the hearing the court told the parties:

'As I announced previously at the hearing on the motion to dismiss, I would not dismiss this case for lack of prosecution unless I felt that I was compelled to. I feel the same way on the motion to reinstate. I would reinstate unless I feel I am compelled not to reinstate by reason of the authorities, which I will study.' (Emphasis added.)

The trial court accordingly denied the plaintiff's petition for reinstatement, stating:

'(c) That the Court is mindful that the prior dismissal of this cause without prejudice and the denial of the petition for reinstatement in effect serves as a dismissal with prejudice inasmuch as the Statute of Limitations on the cause of action involving the death of the Plaintiff's husband has run. The rigidness of the rule as this Court interprets it from the case law of the state falls with particular harshness upon the plaintiff widow and her two small children and does not appear to serve the legislative intent of the statute, to expedite litigation. This court would reinstate the cause if it could find any authority for doing so.' (Emphasis added.)

The question of whether or not a reinstatement for good cause shown must be based on a 'record' showing of good cause is answered in the negative. As noted previously, Fla.App.,Stat. § 45.19,...