Wilds v. Permenter
| Decision Date | 26 November 1969 |
| Docket Number | No. 2634,2634 |
| Citation | 228 So.2d 408 |
| Parties | Joe Perry WILDS, Jr., Appellant, v. Arthur H. PERMENTER, Appellee. |
| Court | Florida District Court of Appeals |
George Orr and John H. Wahl, Jr., of Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellant.
Chester E. Clem, Jr., of Jackson & Clem, Vero Beach, for appellee.
Plaintiff's damage suit was dismissed for lack of prosecution under Rule 1.420(e), F.R.C.P., 30 F.S.A. 1 Plaintiff never moved for its reinstatement. In this state of affairs and some nine and one-half months after dismissal, the case was tried to a jury over the defendant's objection with a plaintiff's verdict resulting. The cause was then reinstated by post trial order entered on the court's own motion. This was done contrary to Rule 1.420(e) in that it was not timely because a motion was not made within one month after dismissal. Further, there was no showing of good cause on the part of the plaintiff. Defendant's post trial protests as to reinstatement of the cause were unavailing. Defendant appeals the judgment. We reverse.
When a cause of action is dismissed for lack of prosecution and where a motion to reinstate the cause is not made within one month thereafter, the order of dismissal becomes final and the jurisdiction of the trial court over the subject matter and the cause is finally ended. Zukor v. Hill, Fla.1956, 84 So.2d 554; Bowyer v. Cannon, Fla.1953, 68 So.2d 564; B & L Trucking Co. v. Loftin, Fla.1953, 63 So.2d 276; Ivy H. Smith Co. v. Moccia, Fla.1952, 59 So.2d 629.
In the order of reinstatement it was commented, '* * * (T)he defendant has waived any right to a continuance of the trial and/or of any right to complain at this late date. * * *' It is supposed that this observation was based upon the fact that the defendant responded to an alias summons which was served upon him some two and one-half months following the order of dismissal (the original summons was not served upon defendant and it does not appear that he received any notice of the dismissal proceeding), by filing an answer and participating in the pre-trial proceedings. So far as the record shows defendant's objection was presented to the court as soon as he became aware of the order of dismissal and the lack as concerns the suit's reinstatement--this being immediately prior to trial.
Was the trial court correct in finding a waiver by defendant? We think not. The most frequent and generally accepted definition of the term 'waiver' is the intentional relinquishment of a known right, or the voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right. There can be no waiver unless the party against whom the waiver is invoked was in possession of all the material facts. Fireman's Fund Insurance Company v. Vogel, Fla.App.1967, 195 So.2d 20, at 24. It is our view that defendant's conduct under the circumstances can not be held to be a waiver because of his lack of knowledge of material facts such as the suit's prior dismissal and lack...
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Rodriguez v. State, 82-262
...relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right. Wilds v. Permenter, 228 So.2d 408, 410 (Fla. 4th DCA 1969). The choice confronting Rodriguez was to accept probation or return to jail. Because he was not released on bail, the on......
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Bonar v. Dean Witter Reynolds, Inc.
...relinquishment of a known right. Guaranty Nat'l Ins. Co. v. Pachivas, 458 So.2d 306, 307 (Fla.Dist.Ct.App.1984); Wilds v. Permenter, 228 So.2d 408, 410 (Fla.Dist.Ct.App.1969); Nassau Trust Co. v. Montrose Concrete Products Corp., 56 N.Y.2d 175, 436 N.E.2d 1265, 1269-70, 451 N.Y.S.2d 663, 66......
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Toiberman v. Tisera
...cannot be conferred on a court by waiver, failure to object, or consent of the parties where none is given by law. Wilds v. Permenter, 228 So.2d 408 (Fla. 4th DCA 1969); Dicaprio v. State, 352 So.2d 78 (Fla. 4th DCA 1977). The same, however, cannot be said of jurisdiction to an arbitration ......
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Lee v. Division of Florida Land Sales and Condominiums, 84-31
...BEC Construction Corporation v. Gonzalez, 383 So.2d 1093 (Fla. 1st DCA), rev. denied, 389 So.2d 1110 (Fla.1980); Wilds v. Permenter, 228 So.2d 408 (Fla. 4th DCA 1969); Miller v. Eatmon, 177 So.2d 523 (Fla. 1st DCA 1965); Huntley v. Alejandre, 139 So.2d 911 (Fla. 3rd DCA), cert. denied, 146 ......
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Legal theories & defenses
...be waived; (2) the actual or constructive knowledge of the right; and; (3) the intention to relinquish the right. 3. Wilds v. Permenter, 228 So.2d 408 (Fla. 4th DCA 1969). 4. Choctawhatchee Electric Cooperative, Inc. v. Gulf Power Co., 265 So.2d 417, 421 (Fla. 1st DCA 1972) (“One may waive ......