Boeing Co. v. MerchantBoeing Co. v. Merchant
Karl O. Koepke of Whitaker & Koepke, Orlando, for appellees.
ORFINGER, Judge.
Appellant was successful in obtaining an order dismissing the cause for lack of prosecution.1 Appellees filed a motion for rehearing which was heard by another judge who determined that the first order was incorrect, so the motion for rehearing was granted, the first order was vacated, and the motion to dismiss for lack of prosecution was denied.
In this appeal from the non-final order, appellant contends that: (1) a successor judge has no authority to reverse, on rehearing, a final order entered by a prior judge on the same facts and issues; (2) in any event, the order dismissing the cause fоr lack of prosecution was correct. We agree on both points and reverse.
A chronology of evеnts is important to an understanding of the issues. Attorney LaGrone, on behalf of appellees, filed an action for damages against appellant. Thereafter, the following appears of record:
May 8, 1978 Motion for LaGrone to withdraw as counsel.
May 23, 1978 Order substituting Attorney Hurt as cоunsel, relieving LaGrone.
September 7, 1978 Motion for Hurt to withdraw as counsel; notice of hearing.
September 15, 1978 Order relieving Hurt; no counsel substituted.
September 25, 1978 Lien of LaGrone filed.
August 15, 1979 Sua sponte order of court setting hearing for October 5, 1979, to take appropriate action including dismissal without prejudice, as applicable. September 24, 1979 Boeing motion to dismiss for failure to prosеcute.
October 4, 1979 Notice of appearance of Attorney Koepke as counsel.
October 5, 1979 Ordеr dismissing cause for failure to prosecute.
The sua sponte order of August 15, 1979 was a form order apparently used by the court to spur action,2 and on September 24, 1979, it was followed by appellant‘s motion to dismiss for failure to prosecute. Judge Vann was the sitting judge on the date set for hearing and he entered an order dismissing the cause for failure to prosecute. Appellee‘s new counsel filed a motion for rehearing contending that the order was incorrеctly entered and noticed this motion for hearing. Judge Vann was not available on the date of the hearing, so it was hеard by another judge who entered the order appealed from.
When a final order has been rendered, a second judge may not redecide the same cause; “[i]t is not the function of one trial judge to review another‘s judgment.” Davis v. Fisher, 391 So. 2d 810 (Fla. 5th DCA 1980).
A petition for rehearing which merely presents the same matters to a subsequent judge will not allow modification of the оriginal order. In Groover v. Walker, 88 So. 2d 312 (Fla. 1956), the supreme court held
We take the proper rule to be that where a petition for rehearing, within its proper scope, presents a point which the chancellor overlooked or failed to consider, rendering a final deсree inequitable or erroneous, then the successor chancellor, exercising the full jurisdiction of the court, may with propriety consider such petition and take such proper action upon it as could his predecessor who entered the decree. In such instances the successor‘s consideration of the case may be sаid to be in continuation of and supplemental to that of his predecessor. However, where the petition fоr rehearing merely reargues the case on points and facts found and considered in the prior hearing of the cause, then the petition for rehearing goes beyond its proper scope and it should be denied in any event, and if the chancellor who entered the decree has been succeeded, his successor is without authority on suсh basis to reverse his predecessor. . . . In such cases, the errors suggested by the petition are matters of review оn appeal rather than rehearing by the successor judge.
88 So. 2d at 314-315. Thus, for example, a successor judge may not grant а new trial on the grounds that his predecessor incorrectly determined the amount of damages; defendant must seek аppellate review. Better Construction, Inc. v. Camacho Enterprises, Inc., 311 So. 2d 766 (Fla. 3d DCA 1975).
Appellee attempts to characterize Judge Vann‘s October 5 dismissal as “interloсutory” because it does not state that the plaintiff “takes nothing” and defendant “go hence without day.” A dismissal of a cause of action is a final disposition which will support an appeal, although a dismissal for want of prosecutiоn which does not involve an adjudication of the merits is not res judicata of the controversy. Gibbs v. Trudeau, 283 So. 2d 889, 890 (Fla. 1st DCA 1973).
It is an abuse of discretion for a trial court to deny a motion to dismiss for lack of prosecution under
From the record bеfore us, when the sua sponte order of the court was entered on August 15, 1979, advising that it would consider, among other things, a dismissal of the cause without prejudice, more than one year had elapsed with no record activity calculated to hasten the suit to judgment. Gulf Appliance Distributors v. Long, 53 So. 2d 706 (Fla. 1951). The only activity shown on the record during that period was the substitution of counsel, which is not “activity” suffiсient to preclude dismissal under
The order appealed from is reversed with directions to reinstate the final order dismissing the causе for lack of prosecution.
REVERSED and REMANDED.
FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.
Notes
Order rendered August 15, 1979:
This action will come on for hearing before the court on the 5 day of October, 1979, at 9:00 o‘clock, A.M., at which time the Court will take appropriate action, including any of the following as applicable:
(1). Enter judgment, if on default.
(2). Hold Final Hearing, if uncontested.
(3). Dispose of pending motions.
(4). Schedule pending matters for hearing.
(5). Set for trial.
(6). Dismiss without prejudice.