215 So. 2d 493 | Fla. Dist. Ct. App. | 1968
Lead Opinion
On October 22, 1962 appellant was injured. His fourth amended complaint against the Hillsborough County Aviation Authority was dismissed and he filed his notice of appeal on February 2, 1965. On March 25, 1966 the appeal was argued in this court. Prior to that date the appellant’s counsel had consented to four extensions of time as a courtesy to appellee’s counsel. On November 30, 1966, the opinion of this court was filed, holding that the complaint was indeed defective, but curably so, and that the fourth amended complaint should have been dismissed without prejudice, 193 So.2d 201. By that time the statute of limitations had run. The order of the Circuit Court entered on the mandate vacated the order dismissing the fourth amended complaint with prejudice and dismissed it without prejudice without allowing leave to amend. The appellant now wonders whether he has won a hollow victory in this court. We cannot suffer the rights of this appellant to allege a cause of action under the law laid down in the prior opinion to be defeated by the courtesy of his counsel, this court’s delay and the trial court’s strict construction of the mandate. Where the statutory period has elapsed during the appellate process through no fault of the plaintiff’s he should be allowed leave to amend.
Reversed and remanded with directions to vacate the order of March 10, 1967 and enter an order dismissing the fourth amended complaint without prejudice and allowing the plaintiff twenty days from the date of the order entered on the mandate herein within which to file an amended complaint alleging a cause of action under the rule laid down at 193 So.2d 201 et seq., if plaintiff chooses so to plead.
Rehearing
On Petition for Rehearing
Counsel ask us, first, to grant a rehearing and secondly, to make it clear that the attorneys who were granted extensions of approximately seventy days were not those named as appellees’ counsel, but their predecessors. We are happy to grant the second request, although we view the courteous cooperation of counsel as commonplace and commendable. As to the first ground of the petition, it is pointed out that the statute of limitations was not involved in this proceeding. That is true, in a sense, but this case has been tied up in the courts long enough already, and if we don’t allow the original opinion to stand the statute of limitations will surely be raised in the next action filed and in the inevitably ensuing appeal. All of that effort is unnecessary. The petition for rehearing is denied and the opinion, as clarified, is adhered to.
