BETTE T. TAICHER, ROBERT LOUIS MARKOWITZ, THOMAS P. MARKOWITZ AND FLORENCE S. MARKOWITZ AS TRUSTEE FOR JERRY MAURICE MARKOWITZ, APPELLANTS,
v.
CITY OF HALLANDALE, APPELLEE
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Plaintiffs appealed the denial of their motion to set aside a dismissal for lack of prosecution. The trial court dismissed the case after over one year of inactivity, and the appellate court affirmed, finding no abuse of discretion despite the plaintiffs' attorney's health issues that caused him to essentially close his practice without notifying the court or clients.
The court held that the appellants failed to show an abuse of discretion. The trial court did not act arbitrarily, fancilly, or unreasonably in dismissing the case for lack of prosecution, as reasonable men could differ on whether to grant the motion to vacate.
[1] A trial court's order dismissing a case for lack of prosecution will be affirmed if the appealing party fails to demonstrate an abuse of discretion.
[2] An abuse of discretion occurs when a judicial action is arbitrary, fanciful, or unreasonable, meaning no reasonable person would adopt the trial court's view.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.”
Establishes the standard for reviewing a trial court's discretionary decisions on whether to dismiss for lack of prosecution.
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Join FLexlaw to unlock all legal intelligenceThe case originally commenced in 1975 and was dismissed when plaintiffs' attorney failed to appear for jury selection; that dismissal was affirmed on …
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PER CURIAM.
This is an appeal from an order denying a motion in the nature of a 1.540 motion to set aside an order dismissing plaintiffs’ case for lack of prosecution.
This case originally commenced in 1975. It was dismissed after plaintiffs’ attorney failed to appear for jury selection. This matter was appealed and affirmed. The matter was refiled in 1979. The effect of the initial dismissal has yet to be litigated due to the lack of prosecution of the second case. No activity occurred for over a period of one year, at which time defendant filed a motion to dismiss pursuant to Florida Rule of Civil Procedure 1.420(e). Plaintiffs’ attorney subsequently filed a statement of good cause and a motion to set aside the judgment. The motion was denied, he appeals, and we affirm.
Our review of the matter is hampered by the absence of transcripts from the hearings, the absence of any sworn affidavits, or any other reliable testimony. The only facts before us are contained in the parties’ briefs which directly contradict each other and do not cite to the record.
Apparently because of poor health and a series of operations, the plaintiffs’ attorney, a sole practitioner, essentially closed his practice of law without notifying the court, the defendant’s attorney, or his clients. He failed to appear at the hearing on the motion to dismiss because by the time he picked up his mail, the hearing had already occurred. Although the time between the mailed notice and the scheduled hearing may have been short, appellant concedes he was eventually allowed to present all matters on his motion to set aside. On appeal, it is alleged that the court abused its discretion in denying the motion to vacate the order of dismissal.
In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), the supreme court approved the following test for review of a judge’s discretionary acts:
Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
Delno v. Market Street Railway Company, 124 F. 2d 965, 967 (9th Cir.1942).
Applying this test to the facts of this case, we conclude that the appellants have failed to show an abuse of discretion. We, therefore, affirm the order of the trial court denying the motion to vacate.
AFFIRMED.
DOWNEY, BERANEK and WALDEN, JJ., concur.
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Schantz v. Century Nat'l Bank OF Broward, 449 So. 2d 1000 (Fla. 4th DCA 1984)…PER CURIAM. We affirm upon authority of John Crescent, Inc. v. Schwartz, 382 So. 2d 383 (Fla. 4th DCA 1980), Taicher v. City of Hallandale, 442 So. 2d 281 (Fla. 4th DCA 1983). AFFIRMED. ANSTEAD, C.J., and HURLEY and WALDEN, JJ:, concur.…
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- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Delno v. Mkt. ST. RY. Co., 124 F.2d 965 (9th Cir. 1942)