
    Wilbur C. YOUNG, as Executor of the Estate of Daisy D. Brink, Deceased, Appellant, v. Marjorie T. PYLE, Appellee.
    No. H-115.
    District Court of Appeal of Florida. First District.
    Jan. 12, 1967.
    Rehearing Denied Feb. 6, 1967.
    
      Cliff B. Gosney, Jr., Daytona Beach, for appellant.
    Maurice Wagner, Holly Hill, and Richard D. Bertone, Daytona Beach, for appel-lee.
   RAWLS, Chief Judge.

This negligence action was formerly dismissed under Section 45.19(1), Florida Statutes, F.S.A., for failure of the plaintiff-appellee to take action therein for a period of more than one year. It was reinstated, however, on petition of plaintiff-ap-pellee and thereafter final judgment was entered in her favor, hence this appeal in which the defendant-appellant’s sole contention is that the trial court was not authorized on the showing made by plaintiff to reinstate the cause. We agree with the chancellor and affirm.

The facts are:

On April 5, 1961, final judgments were entered for plaintiffs Marjorie T. Pyle and Murray A. Pyle, her husband.

On August 17, 1961, the trial court granted a new trial as to the claim of plaintiff Marjorie T. Pyle but denied a new trial as to plaintiff Murray A. Pyle. Proceedings in the trial court were stayed pending an appeal to this court.

On October 2, 1962, we reversed the denial of a new trial as to plaintiff Murray A. Pyle (Young v. Pyle, 145 So.2d 503) and remanded the cause for further proceedings.

On December 6, 1962, the trial court entered an order requiring the plaintiffs to appear at a time and place stated therein for the giving of oral depositions at defendant’s instance and under penalty of having their complaint dismissed with prejudice for failure so to do; and on the same date a pretrial order was entered inter alia setting the cause for trial on March 11, 1963.

On December 12, 1962, plaintiff-appellee, Marjorie T. Pyle, moved for permission to amend the complaint by striking Count Two of the subsisting complaint which related to the claim of her co-plaintiff husband, Murray A. Pyle, who had been dismissed for failure to comply with said order of December 6, 1962, and to amend Count One of the complaint in particulars relating to the claim of plaintiff Marjorie T. Pyle.

On February 27, 1963, an order was entered (1) granting said motion to amend, (2) removing the cause from the trial docket and returning it to the progress docket, and (3) allowing defendant 20 days in which to file responsive pleadings to the amended complaint.

On March 18, 1963, defendant filed motions (a) to dismiss the amended complaint, and (b) to strike certain portions thereof.

On March 16, 1964, the appellant executor of the estate of Daisy D. Brink, the original defendant who is now deceased, filed a motion under F.S., 45.19(1), F.S.A., to dismiss the amended complaint for failure of plaintiff to prosecute the cause for a period of one year from the last pleading “filed on March 15, 1963,” and attached thereto a certificate of the clerk of the trial court reflecting that no action had been taken in said cause subsequent to the filing of defendants said motion to dismiss and motion to strike, “each dated March 15, 1963.” (Note: As above indicated, defendant’s said motions were not in fact filed in the office of the clerk until March 18, 1963. The record shows that copies thereof were served by mail on plaintiff’s attorneys on March 15, 1963.)

On March 20, 1964, the defendant filed and on that date mailed to counsel for plaintiff, Marjorie T. Pyle, a notice that on April 14, 1964, defendant would seek entry of an order dismissing the cause

“for want of prosecution pursuant to Chapter 45.19 of the Florida Statutes [F.S.A.] on the grounds that the plaintiff has failed to comply with the provisions of Section 45.19 [F.S.A.], as it affirmatively appears from the pleadings in this cause that there has been no prosecution of same for a period of one (1) year subsequent to the Defendant’s Motion to Dismiss dated March 15, 1963, and the Defendant’s Motion to Strike dated March 15, 1963.”

On April 14, 1964, the court entered an order dismissing the cause pursuant to Section 45.19, Florida Statutes, F.S.A., for want of prosecution.

On April 30, 1964, plaintiff filed a verified petition for reinstatement alleging, in substance: that liability had been admitted by defendant, leaving only the issue of damages to be tried; that pending the cause domestic problems arose between the plaintiff and her co-plaintiff husband as a result of which he defaulted and suffered dismissal of the cause as it pertained to him; that on February 25, 1963, the court entered the order permitting the amended complaint to be filed by plaintiff-appellee, Marjorie T. Pyle, removing the cause from the trial docket, and allowing defendant 20 days in which to file responsive pleadings thereto; that defendant did file the heretofore-mentioned motion to dismiss and motion to strike the amended complaint; that although the original record indicates that copies of said motions were served by mail on plaintiffs counsel, he did not receive same; that plaintiff had at all times stood ready to try said cause on its merits, had been under the impression that the cause was ready for trial, and had been standing by awaiting a trial date, and “was by either lack of diligence or simple inad-vertency unaware of the pending motion to dismiss and motion to strike;” that the active record of proceedings up to March IS, 1963, indicates it was not the intention of plaintiff to abandon the cause; that plaintiff’s counsel was aware of the heavy docket of the trial court and considered that the delay in the trial of the cause was a result thereof; and, finally,

“that whatever delay has been caused in these proceedings was precipitated to a great extent by the filing on the part of the Defendant of sham pleadings such as the motion to dismiss and the motion to strike, and an examination of said pleadings by the Court will reveal that they were filed for no other purpose than to delay these proceedings and to cause this suit to be stricken from the trial docket.”

On May 13, 1964, the trial court entered an order reinstating the cause on the basis of said petition, which order recites “that sufficient good cause has been shown to invoke the Court’s discretion in reinstating this cause, and, due to the unusual circumstances involved herein, that the Court’s refusal to reinstate same would result in an injustice to Plaintiff.”

On October 7, 1965, final judgment of $4,350.00 was entered for plaintiff.

As reflected by the above chronology of events, this case has had a long and tortuous judicial journey, during, which plaintiff arrived at his day in court.

Prior to 1963, there was a material conflict in the decisions defining the nature of an order of dismissal or reinstatement under Section 45.19, Florida Statutes,. F.S.A., and stating the principle controlling review of such orders; but the Supreme Court of Florida in Adams Engineering Co. v. Construction Products Corp., 156 So.2d 497, 499 (Fla.1963), said:

“The statutory standard of ‘good cause-shown’ requires the exercise of a judicial discretion based upon evidence-rather than [a decision] arbitrary in-character. We now hold that such am order is subject to attack only upon-the ground that it constitutes an abuse of discretion, and this heavy burden must be borne by the losing party.” (Emphasis supplied.)

The trial court’s determination on the issue of good cause being discretionary and resting partly upon the trial judge’s knowledge of the parties, facts and conditions of his court, was not lacking in some evi-dentiary support.

In the prior appearance in this court, Young v. Pyle, supra, we stated:

“ * * * [t]he decedent’s (defendant’s) liability was established by agreement of counsel and a jury trial was held on the issue of damages only.”

We remanded the plaintiff husband’s cause for a new trial on damages only. The trial judge had previously awarded the plaintiff wife a new trial. Plaintiff Marjorie Pyle on March 6, 1963, filed am amended complaint for the purpose of dropping her former husband as a party plaintiff. No other material allegations were set forth in the amended complaint at this stage of the cause. Therefore, as a matter of law defendant’s liability had been established. Nevertheless, on March 18, 1963, defendant filed a motion to dismiss upon the grounds inter alia that “ * * * said complaint is contrary to the law, is vague, ambiguous, and does not allege sufficient facts in which plaintiff, Marjorie T. Pyle, may prove her allegations of liability and damages against the defendant.” This denial of liability presents a clear case of sham, pleading because the defendant had previously agreed that he was liable. By incorporating such allegations in his motion to dismiss, it is readily apparent that defendant was engaging in dilatory tactics and utilizing the rules of civil procedure to delay a final adjudication of plaintiff’s claim. Having indulged in such dilatory tactics, defendant now seeks to take advantage . of same and dismiss the cause. The purpose of the subject statute as expressed many times by the appellate court is to speed decision of disputes by penalizing those who would allow their litigation to become stagnant. Sudduth Realty Co. v. Wright, 55 So.2d 189 (Fla.1951); Dobson v. Crews, 164 So.2d 252 (Fla.App.1964).

Our views are those expressed by Sturgis, J., in Davis v. Evans, 132 So.2d 476, 482 (Fla.App. 1st, 1961), viz.:

“It is uniformly held that the highest purpose for which courts are established is to administer justice under the law, that the rules of practice are for the purpose of aiding speedy determination of causes, and that where strict enforcement of the letter of rules of practice tends to prevent or jeopardize the administration of justice, they should yield to the higher purpose.”

The trial of a civil cause is not a game to see by what legal strategem one may thwart the justice of a cause. Judicial proceedings are made available by the state for the highest purpose of reaching the merits of a cause wherein justice may be rendered. One of the goals of the modern rules of procedure is to eliminate the “technicalities” of the ancient common law rules in order that justice may be granted to the deserving litigant, rather than a judgment rendered in favor of the litigant who employed the most resourceful attorney. Here, the able trial judge in his order reinstating the cause found: “ * * * due to the unusual circumstances involved herein, * * * the court’s refusal to reinstate same would result in an injustice to plaintiff.”

Since the appellant has failed to make a clear showing that the trial judge abused his discretion, we affirm.

JOHNSON, J., concurs.

SACK, J., dissents.

SACK, Judge

(dissenting).

I respectfully dissent from the majority holding for the reasons set out below.

Historically, the statutory abatement and dismissal of suits at law and in equity for want of prosecution originated with Chapter 14554, Laws of Florida, Acts of 1929, which authorized dismissal where it affirmatively appeared no action had been taken for a period of three years. Chapter 23965, Laws of Florida, Acts of 1947, amended the statute by requiring dismissal on motion of an interested party and permitting dismissal by the court of its own motion for want of prosecution extending over a period of one year. Chapter 28201, Laws of Florida, Acts of 1953, Chapter 29737, Laws of Florida, Acts of 1955, and Chapter 59-65, Laws of Florida, Acts of 1959, amended the statute in particulars not material to this appeal.

Numerous decisions of the Florida appellate courts have construed the statute and defined the procedure thereunder. The clear trend of the decisions is to strictly construe the statute to the end that it is incumbent on one seeking reinstatement to clearly demonstrate entitlement by a showing of good cause, which is generally interpreted as contemplating some compelling circumstances of a nature more substantial than mere inadvertence or neglect on the part of the plaintiff to prosecute the action.

In Railway Exp. Agency v. Hoagland, 62 So.2d 756 (Fla.1953), the Florida Supreme Court, speaking through Mr. Justice Mathews, broadly enunciated the principles of law governing the power of the trial court to reinstate a cause abated under the statute, and was followed in Miller v. Hartley’s, Inc., 97 So.2d 211 (Fla.App.1957), both of which reversed orders reinstating actions dismissed under the statute, holding that good cause for reinstatement was not shown. In May v. State ex rel. Ervin, 96 So.2d 126 (Fla.1957), Mr. Justice Drew speaking for the Florida Supreme Court, reiterated the principle that the purpose of the statute is to expedite the course of litigation and keep the court dockets of this state as nearly current as possible, citing Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.1951), and Yelvington & Son v. Sheridan, 65 So.2d 44 (Fla.1953).

In Davant v. Coachman Properties, Inc., 118 So.2d 844, 80 A.L.R.2d 1396 (Fla.App.1960), the District Court of Appeal held that the statutory period of one year is a liberal and reasonable period in which litigants may readjust themselves to almost any kind of calamity. This court adopted that conclusion in Fort Walton Lumber & Supply Company v. Parish Plumbing & Appliance, Inc., 142 So.2d 346 (Fla.App.1962). It is clearly the legislative and judicial concept that inordinate delay in adjudicating the rights of litigants encourages a proper criticism of court procedures.

In Atlantic Coast Line Railroad Company v. Hill, 76 So.2d 861 (Fla.1955), the Florida Supreme Court reversed a judgment for appellee Hill on the ground that the lower court committed error in vacating an order of dismissal entered pursuant to the statute here involved. In that case the motion for reinstatement asserted that plaintiff-movant had set for hearing a motion to dismiss and also a motion for more definite statement filed by the defendant railroad, and in effect was lulled to inaction by correspondence with defendant indicating it would shortly suggest a basis for settlement of the cause. In reversing a judgment for plaintiff entered subsequent to the order of reinstatement, the court said:

“It is shown by the record that no figures or offers of settlement were proposed or submitted ‘within a week’ or at any other time. The fact that one of the parties to the litigation discussed a settlement and promised to submit a proposal or figures within a week which was not done does not constitute the ‘good cause’ contemplated and required by the statute.”

See also: Moore v. Gannon, 178 So.2d 618 (Fla.App.1965); Adams Engineering Co. v. Construction Products Corp., 156 So.2d 497 (Fla.1963); Beck v. Humkey, 146 So.2d 613 (Fla.App.1962); Sudduth Realty Co. v. Wright, 55 So.2d 189 (Fla.1951); Moore v. Fletcher, 159 Fla. 478, 32 So.2d 12 (1947).

Appellee contends that by filing the motion to dismiss and motion to strike addressed to the amended complaint appellant; assumed the duty to take affirmative action, toward having the court dispose of such motions. I find no merit in that contention.. Dismissal is required under the statute unless it affirmatively appears “from some action taken [within a period of one year] by filing of pleadings, order of court, or otherwise, that the same is being prosecuted.”' The duty is thus cast on the party seeking-relief to take some action avoiding the consequences of the statute.

Applying the statute and the decisions to-the several allegations of fact relied on by appellee as demonstrating good cause for-reinstatement of the abated action, I find, that the same are severally and collectively insufficient for the purpose in that: First. Assuming arguendo that the defendant-appellant by a pleading or other action taken prior to the filing of plaintiff’s amended' complaint did admit liability for the tort charged by the former complaint, the order of February 25, 1963 — permitting plaintiff' to file the amended complaint and allowing-defendant to plead thereto — coupled with the motions to dismiss and strike addressed', to the amended complaint, operated to nullify the prior transactions (pleadings) that. were designed to develop the issues to be tried in the cause and made it necessary to make up such issues anew by subsequent pleadings. It was plaintiff’s duty to prosecute the cause — move it along — but this was not done, nor did plaintiff take any affirmative action within one year after defendant’s said motions were filed. Second. The •domestic problems between plaintiff and her former coplaintiff, followed by his dismissal as a party, relate to matters antedating the said order of February 25, 1963, and ■also antedating the defendant’s motions filed pursuant to said order. Such problems were followed by plaintiff’s failure to prosecute the action for more than one year. There was ample time to recover. Third. The statutory abatement of the action is in no wise affected by the fact, if such it be, that counsel for plaintiff did not receive copies of defendant’s said motions by mail as certified by counsel for defendant. Assuming the fact alleged, it only serves to enlarge rather than diminish the period in excess of one year after February 25, 1963, during which plaintiff took no affirmative action in the cause. Fourth. The fact that plaintiff has at all times stood ready to try the cause on its merits is impertinent and immaterial. Plaintiff’s attitude is irrelevent to the operation of the statute. Fifth. The plaintiff, whose duty it was to prosecute the action, cannot avoid the consequences of failing to do so on the ground that she had been under the impression it was ready for trial and she was standing by awaiting a trial date. Such “impression” is not justified in the face of a record which admittedly reveals that the issues had not been settled and the case had not been docketed for trial. Sixth. Plaintiff’s activities in the case prior to her one-year period of inaction and the knowledge of her counsel concerning the crowded condition of the court’s trial docket have no bearing on the question of whether the action is abated and subject to dismissal under the statute. Seventh. Plaintiff’s assault by the petition for reinstatement on the bona fides of the appellant in filing the motions addressed to the amended complaint herein presents no cause for reinstatement. Assuming arguendo that upon a recognizable pleading attacking the motions the same would have been stricken as sham or dilatory in character, the fact is that plaintiff did not make such attack and therefore is not in position to do so by way of excuse against the operation of the statute. I cannot agree that the operation of the abatement statute should be affected by a consideration of the bona fides or legal efficacy of the defendant’s pleadings. This would open the door for wholesale evasion of the purpose of the statute.

The plaintiff-appellee also contends' — -for the first time on this appeal — that the order reinstating the action should be sustained because the order dismissing for failure to prosecute was based on a premature motion of appellee seeking that action under the statute. The record shows that said motion was filed March 16, 1964, and the certificate of counsel for movant indicates that a copy was mailed to counsel for plaintiff on March 16, 1964. The record does not indicate that said copy was seasonably received by plaintiff’s counsel, nor does it appear that she took any affirmative action in the cause after receipt thereof and prior to entry of the order of dismissal on April 14, 1964. Meantime, her counsel was served by mail on March 20, 1964, with a copy of appellant’s notice of intention to apply to the court on April 14, 1964, for an order dismissing the cause under the statute. Ap-pellee points out that defendant’s aforesaid motion to dismiss and motion to strike addressed to the amended complaint were not filed in the office of the clerk until March 18, 1963, and that consequently the motion to dismiss the cause under F.S. § 45.19(1), F.S.A., filed March 16, 1964, was premature because one year had not expired since the filing dates of the motions assaulting the amended complaint. The contention is without merit because it affirmatively appears that more than one year elapsed between March 18, 1963, and March 20, 1964, on which date appellant filed and served on counsel for appellee the above-mentioned notice of hearing, and because, notwithstanding any infirmities in the lapse period between the date of the actual filing of the critical motions in the cause and the date of the order of dismissal, there is no question that more than one year elapsed before the latter and that appellee did not in the meantime take any affirmative action by which to avoid the mandate of the statute.

Plaintiff’s petition for reinstatement candidly acknowledged that failure to diligently prosecute the cause was due to “lack of diligence or simple inadvertence.” Such is not good cause for reinstatement. I would therefore vacate the order of May 13, 1964, and reinstate the order of dismissal entered April 14, 1964. 
      
      . Section 45.19(1), Florida Statutes, F.S.A., provides:
      “(1) All actions at law or suits in equity pending in the several courts of the state, and instituted subsequent to 12:00 noon, October 1, 1947, in which there shall not affirmatively appear from some action taken by filing of pleadings, order of court, or otherwise, that the same is being prosecuted, for a period of one year, shall be deemed abated for want of prosecution and the same shall be dismissed by the court having jurisdiction of the cause, upon its own motion or upon motion of any person interested, whether a party to the action or suit or not, with notice to opposing counsel, provided that actions or suits dismissed under the provisions hereof may be reinstated by petition upon good cause shown to the court filed by any party in interest within one month after such order of dismissal.”
     