Vitolo v. Sabers, 91-1079

• Decision Date: 05 June 1991
• Docket Number: No. 91-1079,91-1079
• Citation: 579 So.2d 923
• Parties: Christine VITOLO, Petitioner, v. Paul G. SABERS, Respondent. 579 So.2d 923, 16 Fla. L. Week. D1499
• Court: Florida District Court of Appeals

Page 923

579 So.2d 923

Christine VITOLO, Petitioner, v. Paul G. SABERS, Respondent.

No. 91-1079.

579 So.2d 923, 16 Fla. L. Week. D1499

District Court of Appeal of Florida,

Fourth District.

June 5, 1991.

Petition for Writ of Certiorari, to the Circuit Court for Broward County; Robert C. Abel, Jr., Judge.

Kenneth A. Rubin, Borkson, Simon & Moscowitz, P.A., Fort Lauderdale, for petitioner.

No appearance for respondent.

PER CURIAM.

We summarily deny the petition for a common law writ of certiorari.

HERSEY, C.J., and STONE, J., concur.

FARMER, J., specially concurs with opinion.

FARMER, Judge, specially concurring.

Petitioner seeks certiorari review of an order denying her motion to dismiss for lack of prosecution. Her petition shows that in August 1989 respondent served a notice for trial which was stricken by the trial court, apparently because certain named but unserved defendants had not responded to the complaint. ¹ Again in August 1990 respondent served another notice for trial with the same result.

In Mikos v. Sarasota Cattle Co., 453 So.2d 402 (Fla.1984), the court held that the service of a notice for trial is sufficient record activity to preclude a dismissal for lack of prosecution under Florida Rule of Civil Procedure 1.420(e). There is some sentiment for the proposition that an improper notice for trial--where the case is not yet at issue--will not preclude a rule 1.420(e) dismissal. Alech v. General Insurance Company, 491 So.2d 337 (Fla. 3rd DCA 1986).

I agree that we cannot address that issue on the present petition. Because the case appears to have been at issue against petitioner, who was served and has filed an answer and affirmative defenses to the second amended complaint, I do not believe that the notice was improper or should have been stricken. It thus follows that the trial court properly denied the rule 1.420(e) motion and there is no error to review by certiorari.

That simply means that we are precluded from addressing petitioner's primary argument--that orders denying dismissal for failure to prosecute should be reviewed by common law certiorari. While she makes a compelling showing that a refusal to grant such review can lead to abuses and that the system might be better served by extraordinary review of such orders, that issue will have to await consideration, if at all, in a case where there is something to be gained by taking up the question.

In this case, I agree that the petition should be denied.

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