ARVIDA CORPORATION, ETC., ET AL., PETITIONERS,
v.
THE HONORABLE ROBERT S. HEWITT AND JON EARHART, ET AL., RESPONDENTS
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Arvida Corporation petitioned for a writ of certiorari to review a trial court's denial of its motion to dismiss for lack of prosecution. The court dismissed the petition on procedural grounds, finding the order not reviewable by certiorari, the proceeding untimely, and the trial judge improperly named as a respondent.
The petition for writ of certiorari was properly dismissed because: (1) the order is not reviewable by certiorari; (2) the proceeding is untimely because there is no existing final judgment; and (3) the trial judge should not have been named as a respondent.
[1] A trial court may vacate an order of dismissal for lack of prosecution upon a motion filed pursuant to Florida Rule of Civil Procedure 1.540.
[2] A trial judge should not be named as a respondent in a petition for writ of certiorari.
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Join FLexlaw to unlock all legal intelligence“Trial judges have enough to say blessings over without inappropriately being named as respondents in petitions for writ of certiorari.”
Establishes the court's position that trial judges should not be named as respondents in certiorari petitions
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Join FLexlaw to unlock all legal intelligenceThe trial court initially granted Arvida's motion to dismiss for lack of prosecution on June 30, 1981, but vacated that order on August 12, 1981 upon …
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GLICKSTEIN, Judge.
The trial court granted petitioner’s motion to dismiss for lack of prosecution in an order dated June 30, 1981; but on August 12, 1981, it vacated same upon respondent Earhart’s motion pursuant to Florida Rule of Civil Procedure 1.540.1 In the two-part order of August 12th the trial court also ordered a hearing be held on petitioner’s motion to dismiss for lack of prosecution after petitioner had an opportunity to obtain the testimony of a witness. The motion to dismiss to which the second part of the August 12th order referred was obviously the same motion which had precipitated the order of dismissal and the vacation thereof. At that point the parties were back in the same position as they were when the motion to dismiss first was filed.
On September 18, 1981, the trial court denied the motion to dismiss for lack of prosecution. Thereafter, petitioner sought rehearing which the court denied on February 22, 1981; he then filed the present petition for writ of certiorari.
First, the trial judge should not have been named as a respondent. Trial judges have enough to say blessings over without inappropriately being named as respondents in petitions for writ of certiorari. They should not be caused to wonder as to whether a response, or counsel who will file same, are necessary.
Second, the order in question is not reviewable by certiorari. Chalfonte Development Corp. v. Beaudoin, 370 So. 2d 58 (Fla. 4th DCA 1979); Bowl America Florida, Inc. v. Schmidt, 386 So. 2d 1203 (Fla. 5th DCA 1980).
Third, this proceeding could be considered timely only if the trial court had denied the rehearing of a final post-judgment order. Clearwater Federal Savings & Loan Association v. Sampson, 336 So. 2d 78 (Fla.1976); Khem-Troll, Inc. v. Edelman, 351 So. 2d 1040 (Fla. 4th DCA 1976); Meyerson v. Texsol, Inc., 385 So. 2d 5 (Fla. 3d DCA 1980). To have such an order there necessarily must be an existing judgment. That is not the case here.
Fourth, petitioner inadvertently termed its petition “emergency” in nature. For the benefit of the Bar, we mention that section 3.2 of this court’s Internal Operating Procedures provides in part:
Any request for emergency action shall be marked urgent and delivered by the Clerk at once to the motion or merits panel of judges assigned to the case.
Because of the response the word “emergency” stimulates in the judges and clerk of this court, it must be used prudently by a petitioner. We therefore dismiss the petition as to the trial judge and deny the petition as to the remaining respondent.
BERANEK and HURLEY, JJ., concur. . No appeal wás taken from this order pursuant to Florida Rule of Appellate Procedure 9.130(a)(5).
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Marsh & McLennan, Inc. v. Aerolineas Nacionales del Ecuador, 530 So. 2d 971 (Fla. 3d DCA 1988)…Riding Academy v. Schneider, 507 So. 2d 782, 784 (Fla. 3d DCA 1987) ("[T]o permit certiorari review would make meaningless the deliberate omission of this non-final order from those appealable under the appellate rules.") and Arvida Corp. v. Hewitt, 416 So. 2d 1264, 1265 (Fla. 4th DCA 1982) ("[T]he order in question is not reviewable by certiorari.”) with Killeam Properties, Inc. v. Hammons Asphalt Paving, Inc., 381 So. 2d 1169 (Fla. 1st DCA 1980) (no certiorari review unless there is a showing of irreparable…
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Martin Cnty. v. Makemson, 464 So. 2d 1281 (Fla. 4th DCA 1985)…show cause why the trial judge should not be dismissed as a respondent. See our opinion upon the inappropriateness of naming trial judges as respondents in petitions for certiorari directed to the orders they enter, in Arvida Corporation v. Hewitt, 416 So. 2d 1264 (Fla. 4th DCA 1982). . Section 925.036, Florida Statutes (1981) provides: (1) An attorney appointed pursuant to s. 925.035 or s. 27.53 shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or sen…
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Southwinds Riding Acad. & Wynell Sebree v. Schneider, 507 So. 2d 782 (Fla. 3d DCA 1987)…the appellate rules. See also Margulies v. Gutierrez, 486 So. 2d 58 (Fla. 3d DCA 1986); Nicholas v. Nicholas, 462 So. 2d 11 (Fla. 2d DCA 1984); Cumbey & Fair, Inc. v. Bd. of County Comm’rs, 436 So. 2d 173 (Fla. 2d DCA 1983); Arvida Corp. v. Hewitt, 416 So. 2d 1264 (Fla. 4th DCA 1982). Accordingly, the appellees’ motion to dismiss is granted, and the appeal is Dismissed. . Article V, Section 4(b)(1) of the Florida Constitution (1972) provides: "District courts of appeal shall have jurisdiction to hear appea…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clearwater Fed. Sav. & Loan Ass'n v. Sampson, 336 So. 2d 78 (Fla. 1976)
- Bowl Am. Fla., Inc. v. Schmidt, 386 So. 2d 1203 (Fla. 5th DCA 1980)
- Edwards v. Lawyers Title Guar. Fund, 370 So. 2d 58 (Fla. 3d DCA 1979)
- Wenk v. Tsiotis, 370 So. 2d 58 (Fla. 4th DCA 1979)
- Khem-Troll, Inc. v. Edelman, 351 So. 2d 1040 (Fla. 4th DCA 1976)
- Sol W. Meyerson v. Texsol, Inc., 385 So. 2d 5 (Fla. 3d DCA 1980)