GERALD L. THOMAS, JR., APPELLANT,
v.
PERSONAL REPRESENTATIVE OF THE ESTATE OF LEO Z. DELOACH, SR., DECEASED; LEO Z. DELOACH, JR., AS HEIR AT LAW OF LEO Z. DELOACH, SR., DECEASED; AND GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., AN INSURANCE CORPORATION, APPELLEES
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Thomas appealed the dismissal of his negligence complaint for failure to prosecute. The Florida appellate court reversed, holding that a notice of trial entered within the 12-month lookback period precluded dismissal under Rule 1.420(e), even though the trial date was later cancelled.
The court held that a notice of trial entered within the 12-month period prior to the motion to dismiss constitutes sufficient action to preclude dismissal under Rule 1.420(e), and the subsequent cancellation of the trial date does not negate this protective effect.
[1] A trial court may dismiss an action for failure to prosecute if no activity has occurred for a period of one year, absent a showing of good cause.
[2] A notice of trial or hearing filed within the twelve months prior to a motion to dismiss for failure to prosecute constitutes sufficient activity to preclude dismissal.
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Join FLexlaw to unlock all legal intelligence“All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending.”
Statement of the applicable rule governing dismissal for failure to prosecute
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Join FLexlaw to unlock all legal intelligenceThomas filed a negligence complaint against DeLoach's estate on October 20, 1978, alleging negligent vehicle operation causing injury. The defendant m…
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PER CURIAM.
Thomas appeals the dismissal of his complaint for failure to prosecute. We reverse and remand.
On October 20,1978, Thomas filed a complaint against DeLoach’s estate alleging De-Loach had negligently operated a vehicle thereby injuring Thomas. The defendant, General Accident Fire and Life Assurance Corporation (General), moved to dismiss the complaint on March 7, 1979. On March 21, 1979, the court entered a Notice of Trial and on May 9,1979, the court filed a Memorandum on Cancellation. The record reflects no other activity until March 12,1980, when General moved to dismiss for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e) (1980). Following a hearing, the trial court entered an order dismissing the cause.
Rule 1.420(e) provides in part:
All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending.
The rule was designed to require prompt prosecution of cases and to prevent the clogging of the trial court’s docket. Strader v. Morrill, 360 So. 2d 1137 (Fla. 1st DCA 1978). The rule, however, specifically provides that “[m]ere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.” Any record activity filed by a party or the court within the year prior to the motion to dismiss which is intended to move the cause to judgment precludes dismissal. Harris v. Winn Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979).
The trial court entered the Notice of Trial within the twelve-month period prior to General’s filing of the motion to dismiss. The courts have consistently held that a notice of trial or hearing is sufficient action to avoid the effect of a motion to dismiss under Rule 1.420(e). Adams Engineering Co. v. Construction Products Corp., 156 So. 2d 497 (Fla.1963); City of Miami v. Railway Express Agency, Inc., 141 So. 2d 285 (Fla. 3d DCA 1962); Milu, Inc. v. Duke, 256 So. 2d 83 (Fla. 3d DCA 1971); Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976). Since the trial judge entered the Notice of Trial within the twelve months prior to the motion to dismiss, the appellee’s motion was prematurely filed and the trial court erred in ordering the dismissal. The fact that the trial date was later cancelled has no bearing on the effect of the notice. The court notes this error may have occurred due to a change in the presiding trial judge.
Accordingly, the cause is reversed and remanded for action consistent with this opinion.
SHIVERS and WENTWORTH, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge, concur.
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Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983)…A 1981) (order requiring reservice of process and return of the alias summons and substituted service constitute record activity); but cf., Giraldo v. Cossin, 399 So. 2d 540 (Fla. 3d DCA 1981); Thomas v. Personal Representative of Estate of DeLoach, 400 So. 2d 204 (Fla. 1st DCA 1981) (court’s notice of trial); Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980) (court’s order vacating original dismissal and parties’ stipulation to permit the filing of an amended complaint); Harris v. Winn-…
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Grooms v. Garcia, 482 So. 2d 407 (Fla. 2d DCA 1985)…of trial or hearing is sufficient action to avoid the effect of a motion to dismiss under rule 1.420(e). Adams Engineering Co. v. Construction Products Corp., 156 [*409] So. 2d 497 (Fla.1963); Thomas v. Personal Representative of Estate of DeLoach, 400 So. 2d 204 (Fla. 4th DCA 1981).3 We therefore reverse the trial court’s order dismissing this cause of action and remand for proper disposition on the merits. GRIMES, A.C.J., and FRANK, J., concur. . Counsel for appellant contended that he became ill shortl…
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Greenwell v. Cuiffo, 415 So. 2d 901 (Fla. 3d DCA 1982)…cause for lack of prosecution because we find that the filing of interrogatories and a notice of hearing were sufficient record activity to justify denial of the defendant’s motion to dismiss. Thomas v. Personal Representative of Estate of DeLoach, 400 So. 2d 204 (Fla. 1st DCA 1981); American Salvage and Jobbing Company, Inc. v. Salomon, 367 So. 2d 716 (Fla. 3d DCA 1979). Neither is there a finding in the order of dismissal that the plaintiff was willfully delaying prosecution of the matter so as to suppor…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Adams Eng'g Co., Inc. v. Constr. Prods. Corp., 156 So. 2d 497 (Fla. 1963)
- Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979)
- Anderson v. State, 141 So. 2d 285 (Fla. 1st DCA 1962)
- Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976)
- Strader v. Thomas A. and Sarah S. Morrill, 360 So. 2d 1137 (Fla. 1st DCA 1978)
- Milu, Inc. v. Duke, 256 So. 2d 83 (Fla. 3d DCA 1971)