JANE JONES, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNIE P. MCCOY, APPELLANT,
v.
VOLUNTEERS OF AMERICA NORTH AND CENTRAL FLORIDA, INC., A FLORIDA NONPROFIT CORPORATION D/B/A A FLORIDA ADULT CONGREGATE LIVING FACILITY, AND KIMBERLY S. CULLEN, APPELLEES

Fla. 2d DCA | 2002-12-13
No. 2D01-4261
BLUE, C.J., and DAVIS, J., concur.
834 So. 2d 280 Florida District Court of Appeal, Second District (2002) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Jane Jones appealed the dismissal of her wrongful death action against a nursing facility and its administrator. The Florida appellate court affirmed the dismissal for lack of prosecution, holding that a notice of trial cannot prevent dismissal if the case is not "at issue" at the time of filing, which requires completion of the pleading process including all defendants' responsive pleadings.


Holding

The court held that a notice for trial does not protect a plaintiff from dismissal for lack of prosecution if the case is not "at issue" when the notice is filed. An action is at issue only when the pleading process is completed as to all defendants. Because Cullen had not filed a responsive pleading, the case was not at issue, rendering the notice for trial insufficient to prevent dismissal.


Headnotes

[1] A notice for trial will not prevent dismissal for lack of prosecution if the case is not "at issue" when the notice is filed.

[2] An action is considered "at issue" when the pleading process is completed.

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Key Quotes

“However, a notice for trial will not protect the plaintiff from dismissal if the case is not "at issue" when the notice is filed.”

Establishes the key rule that notices of trial do not provide automatic protection from dismissal when the pleading process is incomplete.

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Facts & Procedural History

Jane Jones, as personal representative of Annie P. McCoy's estate, filed suit against Volunteers of America North and Central Florida, Inc. and Kimber…

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Opinion of the Court
KELLY, Judge.

KELLY, Judge.

Jane Jones appeals from the trial court’s order granting the motions to dismiss for lack of prosecution filed by the defendants, Volunteers of America North and Central Florida, Inc., and Kimberly S. Cullen. The trial court, in its order, found that the cause was not at issue as to both defendants at the time the notice for trial was filed and, therefore, the notice was insufficient record activity to prevent dismissal. We agree and affirm.

Ordinarily, an action is not subject to dismissal for lack of prosecution under Florida Rule of Civil Procedure 1.420(e)1 if the plaintiff has noticed the case for trial. Young v. Mobile Dental Health, Inc., 730 So. 2d 766 (Fla. 2d DCA 1999). However, a notice for trial will not protect the plaintiff from dismissal if the case is not “at issue” when the notice is filed. Gen. Guar. Ins. Co. v. Bolivar, 460 So. 2d 1011 (Fla. 2d DCA 1984). An action is at issue when the pleading process is completed. Kubera v. Fisher, 483 So. 2d 836 (Fla. 2d DCA 1986). Here, Cullen’s failure to file an answer or other responsive pleading was sufficient to prevent this case from being at issue. See Bennett v. Cont’l Chems., Inc., 492 So. 2d 724, 726-27 (Fla. 1st DCA 1986) (noting that the case was not at issue at the time the notice for final hearing was served, as “no answer had yet been filed crystallizing the issues”). The case had to be at issue as to both defendants before it could be set for trial.

When Cullen failed to answer the complaint, Jones’ proper course of action would have been to move for a default judgment against Cullen or to dismiss Cullen from the suit. Instead, Jones did nothing and Cullen continued to be a party to the action. The entire action was subject to dismissal, not just the inactive defendant. Williams v. Susquehanna Veal Farms, Inc., 828 So. 2d 420 (Fla. 1st DCA 2002) (holding that dismissal for failure to prosecute under rule 1.420(e) is a remedy that is available only as to an entire case); Magers v. Walker’s Cay Air Terminal, Inc., 451 So. 2d 867 (Fla. 4th DCA 1983) (same).

Because there was no record activity in the case for over a year, other than the invalid notice for trial, the trial court did not abuse its discretion in granting the motions to dismiss. Accordingly, we affirm the order dismissing the action.

Affirmed.

BLUE, C.J., and DAVIS, J., concur. . Rule 1.420(e) states:

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 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.

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Cited By

  • Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So. 2d 422 (Fla. 2d DCA 2006)
    …an instance in which the trial court sua sponte, or upon motion by Taylor, entered an order finding that the cause was not at issue at the time the rule 1.440(b) notice was filed by Mr. Cabrera. See Jones v. Volunteers of Am. N. & Cent. Fla., Inc., 834 So. 2d 280, 281 (Fla. 2d DCA 2002).…

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