AMERICAN SALVAGE AND JOBBING COMPANY, INC., A FLORIDA CORPORATION, APPELLANT,
v.
JACQUE SALOMON, FORMERLY D/B/A SUN VILLAGE MOTEL, AND SADIE SALOMON, APPELLEES
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.
American Salvage appealed the trial court's dismissal of its case for lack of prosecution. The court reversed, holding that the plaintiff's filing of interrogatories and motion to compel answers constituted sufficient record activity within one year to prevent dismissal under the amended Florida Rules of Civil Procedure.
The trial court lacked authority to dismiss the case for lack of prosecution because the plaintiff's filing of interrogatories and motion to compel answers constituted constructive record activity related to good faith prosecution of the case within one year prior to dismissal, which prevents dismissal under amended F.R.Civ.P. 1.420(e).
[1] A trial court cannot dismiss an action for lack of prosecution when there has been record activity within one year prior to the motion to dismiss.
[2] Activity in the record, such as filing interrogatories and motions to compel answers, can be constructively related to the good faith prosecution of a case.
Previewing 2 of 5 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“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.”
States the operative rule for dismissal for lack of prosecution under amended F.R.Civ.P. 1.420(e)
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn December 22, 1977, the trial judge granted defendants' motion to dismiss for lack of prosecution. However, within one year prior to the dismissal, …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Record Activity cases and more on FLexlaw
SCHWARTZ, Judge.
On December 22, 1977, the trial judge granted the defendants’ motion, filed on November 1, 1977, to dismiss the cause for lack of prosecution. The case was dismissed despite the fact that the plaintiff had filed and served interrogatories and had filed and noticed a hearing on a motion to compel answers to those interrogatories notwithstanding defendants’ objections, all within one year prior to the filing of the motion to dismiss.1 The plaintiff appeals and we reverse.
We have examined the “record activity” represented by the interrogatories and the plaintiff’s attempts to compel answers to them and find that the activity was constructively related to a good faith prosecution of the plaintiff’s case. That activity therefore could not properly have been stricken or disregarded in the consideration of the contention that the action had not been diligently prosecuted. See Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla.1972); Bay Colony Office Building Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005 (Fla. 4th DCA 1977); Citizens and Southern Realty Investors v. Lastition, 332 So. 2d 357 (Fla. 4th DCA 1976); Slatko v. Virgin, 328 So. 2d 499 (Fla. 3d DCA 1976). Because this is the case, the trial court lacked authority to dismiss the case for lack of prosecution under the provisions of F.R.Civ.P. 1.420(e) as amended by the addition of the underscored language, effective January 1, 1977:
“(e) Failure to Prosecute. 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. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.”
The committee note to the amendment states:
“Subdivision (e) has been amended to prevent the dismissal of an action for inactivity alone unless one year has elapsed since the occurrence of activity of record. Non-record activity will not toll the one year time period.”
It is obvious that the effect of the amendment is to preclude a trial court from exercising its supposed inherent, discretionary power to dismiss a case for failure to prosecute, when, as in this case, there is activity of record within one year prior to the dismissal. The amendment thus overrules such cases as Reddish v. Forlines, 207 So. 2d 703, 705-706 (Fla. 1st DCA 1968). See Hahn v. First National Bank of Delray Beach, 345 So. 2d 345, 346 (Fla. 4th DCA 1977). In accordance with the clear terms of the rule, the final order of dismissal is reversed and the cause remanded for fur ther proceedings consistent with this opinion.
Reversed and remanded.
. The proceedings below followed our reversal of a judgment on the pleadings for the defendants in American Salvage and Jobbing Co., Inc. v. Salomon, 295 So. 2d 710 (Fla. 3d DCA 1974).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
-
Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979)…sustained in a dismissal for want of prosecution under its inherent power to control its docket without a finding that the plaintiff was wilfully delaying prosecution of the matter. In American Salvage and Jobbing Co. v. Salomon, Fla. 3rd DCA 1979, 367 So. 2d 716, the court reversed an Order of Dismissal for Lack of Prosecution because there had been record activity, within the year prior to the motion, represented by interrogatories and plaintiff’s attempts to compel answers to them. It was stated that such…
-
Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990)…ply, Inc., 467 So. 2d 479 (Fla. 5th DCA 1985) (notice of taking deposition, even though deposition not taken); Greenwell v. Cuiffo, 415 So. 2d 901 (Fla. 3d DCA 1982) (interrogatories and notice of hearing); American Salvage & Jobbing Co. v. Salomon, 367 So. 2d 716 (Fla. 3d DCA 1979) (interrogatories and notice of hearing on motion to compel); City of Jacksonville v. Hinson, 202 So. 2d 806 (Fla. 1st DCA), cert. denied, 207 So. 2d 688 (Fla.1967) (interrogatories, objections to interrogatories, and notice of tak…
-
Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980)…ule 1.420(e), Florida Rules of Civil Procedure: “Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.” As stated by the court in American Salvage and Jobbing Company, Inc. v. Salomon, 367 So. 2d 716, 717 (Fla. 3d DCA 1979); “It is obvious that the effect of the amendment is to preclude a trial court from exercising its supposed inherent, discretionary power to dismiss a case for failure to prosecute, when, as in this case, there is activity of…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Reddish v. Forlines, 207 So. 2d 703 (Fla. 1st DCA 1968)
- Slatko v. Virgin, 328 So. 2d 499 (Fla. 3d DCA 1976)
- Am. Salvage & Jobbing Co., Inc. v. Jacque Salomon, 295 So. 2d 710 (Fla. 3d DCA 1974)
- BAY Colony Off. Bldg. Joint Venture v. Wachovia Mortg. Co., 342 So. 2d 1005 (Fla. 4th DCA 1977)
- Citizens & S. Realty Invs. v. Lastition, 332 So. 2d 357 (Fla. 4th DCA 1976)
- Hahn v. First Nat'l Bank OF Delray Beach, 345 So. 2d 345 (Fla. 4th DCA 1977)