LESTER F. RUDOLPH, APPELLANT,
v.
ROBERT H. CHASE, ET AL., APPELLEE
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Appellant Rudolph appealed an order dismissing his case for failure to prosecute. The court reversed, holding that although Rudolph failed to prosecute timely, he was relieved of this obligation by the trial court's order of abatement that removed the case from the active docket.
A plaintiff is not under the usual obligation to prosecute when the trial court has entered an order of abatement removing the case from the active docket. Although the trial judge may have intended only to continue the case, the order must be taken at its word as written.
[1] A case removed from the active case docket by court order is abated, and the plaintiff is not under the usual obligation to proceed with prosecution during the abatement…
[2] Parties are entitled to take court orders at face value, even if the court may have intended something different.
Previewing 2 of 3 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“it is also clear that he was not under the usual obligation to proceed because his case had been abated and removed from the active case docket, by order of court”
Establishes that abatement relieves the plaintiff of the obligation to prosecute
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Join FLexlaw to unlock all legal intelligenceRudolph's case was scheduled for trial beginning October 18, 1982. Shortly before trial, his attorney was permitted to withdraw and requested a contin…
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DAUKSCH, Judge.
This is an appeal from an order dismissing a case for failure to prosecute. Rule 1.420(e), Fla.R.Civ.P. It is correct that appellant failed to prosecute his case in a timely fashion as required by the rules of civil procedure and he failed to show any good cause for his delinquency. But it is also clear that he was not under the usual obligation to proceed because his case had been abated and removed from the active case docket, by order of court.
Appellant was represented by counsel and shortly before trial the lawyer was permitted to withdraw. The former attorney also asked that the scheduled trial be continued. The order entered by the trial judge reads in full:
THIS CAUSE having come on before me this 15th day of October, 1982, to be heard upon Motion for Continuance and the Court having considered same and being fully advised in the premises, it is thereupon
ORDERED AND ADJUDGED that the above-captioned case presently scheduled for trial the period beginning October 18, 1982 is abated until the filing of the Notice of Appearance of another attorney for the Plaintiff. The Clerk of Court is directed to remove this case from the active caseload.
DONE AND ORDERED in Chambers, Orange County, Orlando, Florida, this 18th day of October, 1982.
This is not an order continuing the case for trial. It is an order of abatement. It even directs the clerk to remove the case from the active case load. This latter portion of the order was handwritten. Appellant’s assertion that the trial judge was the one who wrote it is unchallenged.
We find merit in appellees’ argument that anyone should have realized the judge did not really mean to abate the case, but merely to continue it. Acknowledging the merit of the argument we still must take the order at its word. It says the case is abated, it removes it from the active case load. It does not continue it to the next trial period of any such thing. Appellant, then unrepresented by counsel, and subsequent counsel were entitled to take the order at face value.
The order is reversed and this cause remanded for further proceedings.
REVERSED.
SHARP, J., concurs.
COWART, J., dissents without opinion.
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Berenyi v. Halifax Hosp. Med. Ctr., 498 So. 2d 655 (Fla. 5th DCA 1986)…xtend the one year period referred to in Rule 1.420(e) by an additional 45 days, the motions to dismiss for lack of prosecution were premature. However, we cannot agree that the order tolled the one year period. Appellants rely on Rudolph v. Chase, 468 So. 2d 494 (Fla. 5th DCA), pet. for rev. denied, American Home Assur. Co. v. Rudolph, 479 So. 2d 117 (Fla.1985) to support their position, but that case is completely distinguishable from this one. In Rudolph, the trial court abated the action and removed it f…
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Togo's Eatery OF Fla., Inc. v. Frohlich, 526 So. 2d 999 (Fla. 1st DCA 1988)…lable in those cases in which there has been a court ordered stay or an automatic stay, as in a bankruptcy proceeding. Personalized Air Conditioning, Inc. v. C.M. Systems of Pinellas County, Inc., 522 So. 2d 465 (Fla. 4th DCA 1988); Rudolf v. Chase, 468 So. 2d 494 (Fla. 4th DCA), review denied, 479 So. 2d 117 (Fla.1985); Bowman v. Peele, 413 So. 2d 90 (Fla.2d DCA 1982); DeLuca v. Harriman, 402 So. 2d 1205 (Fla. 2d DCA 1981), review denied, 412 So. 2d 465 (Fla.1982); Lowen Air Conditioning, Inc. v. Small, 397…
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Modellista de Europa (Corp.) v. Redpath Inv. Corp., 714 So. 2d 1098 (Fla. 4th DCA 1998)…(2) therefore, the order granting appellant thirty days to obtain new counsel was the functional equivalent of a thirty day abatement; (3) where a court’s order abates the action the one year period under Rule 1.420(e) is tolled. Rudolph, v. Chase, 468 So. 2d 494 (Fla. 5th DCA 1985); Togo’s Eatery of Florida, Inc. v. Frohlich, 526 So. 2d 999 (Fla. 1st DCA 1988). But Rudolph and Togo’s are clearly distinguishable because in each of them the court order expressly provided for the action to be abated. The order…