Sroczyk v. Fritz, 36911
| Decision Date | 26 February 1969 |
| Docket Number | No. 36911,36911 |
| Citation | 220 So.2d 908 |
| Parties | Frederick Frank SROCZYK, a/k/a Fred Sroczyk, Petitioner, v. Chester J. FRITZ, Respondent. |
| Court | Florida Supreme Court |
Dan R. Warren and Anthony J. Grezik, Daytona Beach, for petitioner.
Cliff B. Gosney, Jr., Daytona Beach, and J. Lewis Hall, of Hall, Hartwell, Hall & Canada, Tallahassee, for respondent.
In an action at law the circuit court of Volusia County, after jury trial, entered a judgment for the plaintiff. This judgment was reversed by the District Court of Appeal, First District, because the trial court did not grant a motion of the defendant to dismiss the case for lack of prosecution filed earlier in the proceedings. The pertinent matters in the record on appeal before the District Court of Appeal stated chronologically are:
Original Record on Appeal
April 20, 1965--Order of the trial judge continuing the case 'for the term'.
February 10, 1966--Notice of appearance of new counsel for plaintiff containing a request that the clerk place his name as associate counsel, together with certificate of service upon counsel for defendant. 1
April 21, 1966--Motion by defendant to dismiss the case for lack of prosecution with certificate of service.
June 6, 1966--Notice by plaintiffs attorneys of hearing June 14, 1966 on motion to dismiss for lack of prosecution with certificate of service.
(There is nothing in the original record on appeal to show a hearing on June 14, 1966, or an order on the motion to dismiss for lack of prosecution, but thereafter various pre-trial steps were taken and the case was tried.)
November 10, 1966--Final Judgment for plaintiff.
January 5, 1967--Entry of appeal by defendant.
January 5, 1967--Assignment of errors filed containing this assignment: 'The court erred in denying defendants motion to dismiss for want of prosecution dated April 20, 1966, and heard before the court on June 14, 1966.'
March 14, 1967--Motion by plaintiff for an order nunc pro tunc relating to a hearing on June 14, 1966, on defendant's motion to dismiss for want of prosecution.
March 31, 1967--Order of trial court entered nunc pro tunc June 14, 1966, denying defendant's motion to dismiss for reasons found to constitute good cause why the case should not be dismissed and setting forth the reasons for that order all of which had been orally announced on June 14, 1966.
The opinion of the District Court of Appeal states:
'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.'
The District Court of Appeal then held that the trial court had denied the defendant's motion to dismiss and that this denial was reversible error because: (1) the record showed no action indicating a prosecution of the case from April 20, 1965, to April 21, 1966, and (2) the order denying the motion could not have been justified by a showing of good cause for failure to prosecute during that period.
Jurisdictional conflict exists between the judgment of the District Court of Appeal, First District in the case at bar and the decision of this court in Adams Engineering Co. v. Construction Products Corp., 156 So.2d 497.
In Adams this court quashed a decision of the District Court of Appeal, Third District which reversed an order of a trial court denying a motion to dismiss a case for lack of prosecution. The trial court's denial of the motion was based upon affidavits showing that a request had been made for the case to be docketed within the year preceding the filing of the motion to dismiss. The judgment of this court had the effect of reinstating and affirming the order of the trial court denying the motion to dismiss. This court said:
'The trial court's determination on the issue of good cause was not wholly lacking in evidentiary support, but rested instead not only on the knowledge of the trial judge of conditions in his court but also on an evaluation of affidavits concerning efforts to obtain trial docketing within the preceding year. * * *'
In that case it was quite apparent that the trial court exercised a judicial discretion in denying the motion to dismiss, and that the denial was based upon a showing made at a hearing on a motion to dismiss for lack of prosecution. On rehearing this court said:
'Upon reconsideration we adhere to the prior determination of the cause.'
Some language in the opinion on rehearing, taken alone, may suggest a modification of the original decision, but the Adjudication on the original hearing and on rehearing was the same. The trial court's action in denying a motion to dismiss for lack of prosecution was reinstated after being reversed by the District Court of Appeal, Third District. The trial court's denial of the motion to dismiss was based upon affidavits tending to show good cause for the delay. The affidavits were filed in opposition to the motion to dismiss and considered by the trial court at the hearing on the motion to dismiss.
In the case at bar the District Court of Appeal reversed a final judgment after jury trial because of the trial court's denial of a motion to dismiss for lack of prosecution earlier in the proceedings.
In doing so, it recognizes that Adams holds 'the better rule to be that evidence of good cause for having failed to prosecute may be considered by the trial court in passing upon a motion to dismiss for want of prosecution, as well as in passing upon a motion to reinstate after the case has been dismissed.'
Notwithstanding this clear recognition of the statement of law in Adams, the District Court of Appeal disapproved the quoted language from Adams and held that there was no discretion vested in a trial court in passing upon a motion to dismiss for lack of prosecution--that the only point at which discretion could be exercised was in passing upon a motion to reinstate. It expressed the opinion that Adams was inconsistent with prior decisions and was superseded by Little v. Sullivan. 3 There is a very definite and clear conflict between the case at bar and Adams.
It is significant that, under the constitution the issuance of conflict certiorari is discretionary and the conflict need not be between the District Court of Appeal's decision and the latest decision of this court on the question.
If we leave Adams, Little and the District Court opinion in this case on the books, together with other decisions 4 on the same subject, there will be irreconcilable statements of law in this important field of procedure which will inevitably cause uncertainty and confusion to the bar, the trial courts and the district courts of appeal.
It is just such areas of uncertainty in the law developed by inconsistent judicial opinions that makes necessary the conflict jurisdiction of this court. When the conflict is of such degree and in an area of such importance in the conduct of litigation as is here presented, this court should take jurisdiction and attempt to express the law in such clear language as to discourage further litigation.
It is probable that some of the apparent inconsistencies in the decisions are due to the failure of the opinions to point out changes which have been made in the statute. 5
When originally enacted in 1929 this statute provided for dismissal when no action had been taken in three years, and authorized application for reinstatement at any time within six months from the order of dismissal. It provided that dismissal should be 'without revivor or notice'.
This statute was amended by Chapter 23965, Acts of 1947, so as to reduce the period of inaction authorizing dismissal to one year and reduce the time for application for reinstatement after dismissal to one month. The provision that dismissal be without 'revivor or notice' was retained.
By Chapter 29737, Acts of 1955, a crucial amendment was made. The words 'without revivor or notice' were deleted and in their place the words 'with notice to opposing counsel' were inserted.
Prior to the amendment of 1955 there was no provision in the statute for notice to the parties, even the defendant when the motion was made by an interested third party, before the entry of an order of dismissal. The order of dismissal was, therefore, essentially an ex parte judgment and the only opportunity afforded by the statute for a person injured by the dismissal to be heard was on a motion to reinstate.
By the amendment of 1955 it would appear that the legislature intended to require that the parties be given an opportunity to be heard on every motion to dismiss for lack of prosecution. The only reason for requiring notice and an opportunity to be heard was...
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Chrysler Leasing Corp. v. Passacantilli
...a party must still show either active prosecution within the preceding year, or good cause for his failure to prosecute. Sroczyk v. Fritz, 220 So.2d 908 (Fla.1969); Barrentine v. Vulcan Materials Co., 216 So.2d 57 (Fla.App.1st, 1968); All State Building Materials, Inc., v. Peoples National ......
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Golden Loaf Bakery, Inc. v. Charles W. Rex Const. Co.
...review. 'It is significant that, under the constitution the issuance of conflict certiorari is discretionary . . ..' Sroczyk v. Fritz, 220 So.2d 908, 911 (Fla.1969).6 'Our concern is with the decision under review as a legal precedent to the end that conflicts in the body of the law of this......
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Grossman v. Segal
...failure to prosecute to avoid dismissal of his complaint. Chrysler Leasing Corp. v. Passacantilli, Fla.1972, 259 So.2d 1; Sroczyk v. Fritz, Fla.1969,220 So.2d 908; Fleming v. Florida Power Corp., Fla.App.1971, 254 So.2d 546; Adams Engineering Co. v. Construction Products Corp., Fla.App.1962......
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...failure to prosecute to avoid dismissal of his complaint. Chrysler Leasing Corp. v. Passacantilli, Fla.1972, 259 So.2d 1; Sroczyk v. Fritz, Fla.1969, 220 So.2d 908; Fleming v. Florida Power Corp., Fla.App.1971, 254 So.2d 546; Adams Engineering Company v. Construction Products Corp., Fla.App......
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