HSBC BANK USA, N.A., APPELLANT,
v.
GORDON COCHRANE, APPELLEE
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HSBC Bank USA sought to enforce a home equity line agreement against Gordon Cochrane. The trial court dismissed the case for lack of prosecution, but the appellate court reversed, finding the dismissal improper because the plaintiff had filed a motion for mediation within the required ten-month window, constituting record activity that precluded dismissal under Florida Rule of Civil Procedure 1.420(e).
The trial court's dismissal for lack of prosecution was improper. Under Fla. R. Civ. P. 1.420(e), a case cannot be dismissed for lack of prosecution if there has been record activity within the ten months preceding the notice, and the plaintiff's motion for mediation constituted such record activity.
[1] A trial court's notice of lack of prosecution and subsequent dismissal are improper if record activity has occurred within the ten months preceding the notice.
[2] Florida Rule of Civil Procedure 1.420(e) requires a sixty-day grace period after notice of lack of prosecution for a party to take action before dismissal.
Previewing 2 of 4 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“Under Florida Rule of Civil Procedure 1.420(e), the trial court's notice and subsequent order of dismissal for lack of prosecution were improper. The plain language of the rule states that there must be no record activity in the ten months preceding the notice.”
Establishes the legal standard for dismissal for lack of prosecution and identifies the trial court's error.
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Join FLexlaw to unlock all legal intelligenceHSBC Bank USA brought an action against Gordon Cochrane for defaulting under a home equity line agreement. Although appellant filed a motion for media…
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Confession of ErRor
HSBC Bank USA, N.A. (“appellant”) brought an action against Gordon Cochrane (“appellee”) alleging that appellee' defaulted under a home equity line agreement. Even though appellant filed a motion for mediation on February 11, 2015, the trial court issued a notice of lack of prosecution sixteen days later on February 27, 2015, which also included the court’s motion to dismiss and an order setting hearing.
Under Florida Rule of Civil Procedure 1.420(e), the trial court’s notice and subsequent order of dismissal for lack of prosecution were improper. The plain language of the rule states that there must be no record activity in the ten months preceding the notice. Fla. R. Civ. P. 1.420(e); see also DRD Marine Corp. v. Byrd Techs., Inc., 77 So.3d 867, 868-69 (Fla. 4th DCA 2012). The rule also requires that if any interested person, the court, or the clerk of the court serves notice on a party that there has been no record activity for ten months, a sixty-day grace period must then be provided for the party to take some action on the record before the case can be dismissed for failure to prosecute. Fla. R. Civ. P. 1.420(e). Specifically, the rule states:
If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action 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 party shows good cause in writing at least 6 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
Here, appellant filed a motion to mediate, which constituted record activity, within the ten-month period immediately prior to the trial court’s notice of lack of prosecution. Thus, both the notice of lack of prosecution and the order of dismissal were improperly issued. Based upon our independent review of the record and ap-pellee’s commendable and proper confession of error, we reverse the trial court’s order and remand with directions to vacate the order of dismissal.
Reversed and Remanded with instructions.
LEVINE, FORST and KLINGENSMITH, JJ., concur.
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Citator
Cited By
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McGrath v. Martin, 238 So. 3d 361 (Fla. 3d DCA 2017)…al because "in the ten-month period that preceded the service date of the lack of prosecution notice, there were five docket entries which provided five reasons why the notice of no activity was a nullity"); see also HSBC Bank USA, N.A. v. Cochrane, 180 So. 3d 1163, 1164 (Fla. 4th DCA 2015) (reversing Rule 1.420(e) dismissal because "appellant filed a motion to mediate, which constituted record activity, within the ten-month period immediately prior to the trial court's notice of lack of prosecution"). Because…
Authorities Cited
- DRD Marine Corp. v. Byrd Techs., Inc., 77 So. 3d 867 (Fla. 4th DCA 2012)