Passacantilli v. Chrysler Leasing Corp.

District Court of Appeal of Florida

Passacantilli v. Chrysler Leasing Corp.

249 So. 2d 518, 1971 Fla. App. LEXIS 6394

CourtDistrict Court of Appeal of Florida

DecidedJune 1, 1971

DocketNo. 70-1205

StatusPublished

Cited by2 cases

This text of 249 So. 2d 518 (Passacantilli v. Chrysler Leasing Corp.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Passacantilli v. Chrysler Leasing Corp., 249 So. 2d 518, 1971 Fla. App. LEXIS 6394 (Fla. Ct. App. 1971).

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Opinion

PEARSON, Chief Judge.

This appeal by the plaintiffs is from an order of the trial judge which upon his own motion dismissed the cause for lack of prosecution pursuant to RCP 1.420(e), 30 F.S.A. It appears that the trial judge was mistaken in his finding that, “ * * * it appearing that no action, by any party to the cause, has been taken by the filing of pleadings, Order of Court, or otherwise, in this case for a period of more than one year prior to the date of this order. * * therefore, we reverse.

An examination of the record reveals that in a response to the trial judge’s re-notice of the hearing on the court’s motion for order of dismissal, attorney for the plaintiff-appellant filed an affidavit in which he set forth that one of the plaintiffs had suffered a severe heart attack and stroke but that all of the plaintiffs were now ready to proceed to trial at any time the court would set the trial. Although this tender of trial did not technically comply with the court’s last order continuing trial because of the illness of this same plaintiff, it nevertheless amounted to an offer of immediate trial and as such was a pleading in the cause.

Therefore, it appearing that the trial court based its dismissal upon a mistaken finding as to the posture of the cause before it, the order appealed is reversed and the cause remanded for an order setting the cause for trial as expeditiously as can be done.

Reversed and remanded.

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PEARSON, Chief Judge.

This appeal by the plaintiffs is from an order of the trial judge which upon his own motion dismissed the cause for lack of prosecution pursuant to RCP 1.420(e), 30 F.S.A. It appears that the trial judge was mistaken in his finding that, “ * * * it appearing that no action, by any party to the cause, has been taken by the filing of pleadings, Order of Court, or otherwise, in this case for a period of more than one year prior to the date of this order. * * therefore, we reverse.

An examination of the record reveals that in a response to the trial judge’s re-notice of the hearing on the court’s motion for order of dismissal, attorney for the plaintiff-appellant filed an affidavit in which he set forth that one of the plaintiffs had suffered a severe heart attack and stroke but that all of the plaintiffs were now ready to proceed to trial at any time the court would set the trial. Although this tender of trial did not technically comply with the court’s last order continuing trial because of the illness of this same plaintiff, it nevertheless amounted to an offer of immediate trial and as such was a pleading in the cause.

Therefore, it appearing that the trial court based its dismissal upon a mistaken finding as to the posture of the cause before it, the order appealed is reversed and the cause remanded for an order setting the cause for trial as expeditiously as can be done.

Reversed and remanded.

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Bluebook (online)

249 So. 2d 518, 1971 Fla. App. LEXIS 6394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/passacantilli-v-chrysler-leasing-corp-fladistctapp-1971.

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