GOVERNMENT EMPLOYEES INSURANCE COMPANY, APPELLANT,
v.
RANDALL CHARLES WHEELUS, ETC., ET AL., APPELLEES
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GEICO appeals the dismissal of its case for lack of prosecution. The court affirms the dismissal, holding that a party cannot cure a year-long void in record activity by filing a pleading after the defendant moves to dismiss, as this would undermine the rule's purpose of expediting litigation.
The court holds that a party cannot show prosecution by filing a pleading after a motion to dismiss is made. A court must look back from the filing date of the motion to dismiss to determine if a year-long void in record activity exists, excluding any subsequently filed pleadings.
[1] A trial court is required to look back from the filing date of a motion to dismiss for lack of prosecution to determine if a year-long void in record activity exists.
[2] A party cannot show prosecution by filing a pleading after a motion to dismiss for lack of prosecution has been made.
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“neither the statute nor the rule contemplates that a party may show "prosecution" by filing a pleading after a motion to dismiss is made by the other side.”
Establishes the core rule that post-motion filings cannot demonstrate prosecution.
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Join FLexlaw to unlock all legal intelligenceGEICO filed a response to a request to produce on July 15, 1976. No record activity occurred until August 5, 1977, when defendants Floyd and Florida C…
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PER CURIAM.
This case is no stranger to the Court.1 It is here today because of its dismissal for lack of prosecution. We affirm.
The relevant history centers on the time frame between July 15, 1976 and August 5, 1977. On the former date GEICO filed its response to a request to produce. There is a void in record activity until August 5, 1977 when, the defendants Floyd and Florida Coca Cola Bottling Company filed their motion to dismiss for lack of prosecution. GEICO responded by filing a notice for trial on September 6, 1977. Defendants’ motion for dismissal was heard and granted on September 7, 1977 and thereafter the trial court denied a petition for rehearing.
Appellant’s sole contention on appeal is that the trial court abused its discretion by not considering GEICO’s notice for trial which was filed after the motion to dismiss. We disagree. This very issue was considered by the Supreme Court in Chrysler Leasing Corporation v. Passacantilli, 259 So. 2d 1, 4 (Fla.1972) where the court said:
(N)either the statute nor the rule contemplates that a party may show “prosecution” by filing a pleading after a motion to dismiss is made by the other side. The underlying purpose of the rule, (as of its predecessor, Fla.Stat. § 45.19, F.S.A.), is to expedite the course of litigation and keep dockets as nearly current as possible by penalizing those who would allow litigation to become stagnant. To permit a party to show “action” by filing a pleading subsequent to a motion to dismiss for want of prosecution would effectively emasculate the rule by eliminating its penalty aspect. A party could delay the progress of the action for an indefinite period of time in the knowledge that when his adversary moved to dismiss under the rule, he could prevent dismissal merely by filing some pleading, motion or affidavit. That is, a party could avoid dismissal in every case by acting after the motion was made, whether or not he had prosecuted the action during the previous year, or could show good cause for his failure to do so. The threat of dismissal would cease to have any real deterrent effect in terms of requiring a party to keep a case moving. (Citations omitted.)
Under Rule 1.420(e), Fla.R.Civ.P., the court is required to look back from the filing date of the motion to dismiss and first determine whether “ . . .it appears on the face of the record that no activity . . . has occurred for a period of one year '. ..” If a year-long void in record activity is found to exist, the cause shall be dismissed “ . . . unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending.” In the case at bar, the trial court was correct in directing its focus back from August 5, 1977, the filing date of defendants’ motion to dismiss, and in excluding GEI- CO’s subsequently filed notice for trial. Accordingly, the order of dismissal is affirmed.
DOWNEY, JAMES C., HERSEY, GEORGE W., and HURLEY, DANIEL T. K., Associate Judges, concur. . Government Employees Insurance Co. v. Wheelus, 270 So. 2d 409 (Fla. 4th DCA 1972) and Government Employees Insurance Co. v. Wheelus, 319 So. 2d 181 (Fla. 4th DCA 1975).
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Fallschase Dev. Corp. v. Jackson A. Sheard & Oxford-America Corp., 655 So. 2d 214 (Fla. 1st DCA 1995)…91 So. 2d 337 (Fla. 3d DCA 1986). The second notice for trial was not filed until after the motion to dismiss for lack of prosecution had been filed. Accordingly, it cannot serve to defeat that motion. E.g., Government Employees Ins. Co. v. Wheelus, 382 So. 2d 124 (Fla. 5th DCA 1980). We are, nevertheless, constrained to reverse and remand for a new hearing on the motion to dismiss. The hearing on the motion to dismiss was rescheduled from July 12, 1994, to June 28,1994. Appellant claims that it did not rec…
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Am. Wall Sys., Inc. v. Madison Int'l Grp., Inc., 898 So. 2d 111 (Fla. 5th DCA 2005)…hat there was no record activity within the one year preceding that date. As pointed out by the appellees, it is the filing date of court papers that determines record activity under Rule 1.420(e). See Government Employees’ Insurance Co. v. Wheelus, 382 So. 2d 124 (Fla. 5th DCA 1980). The last record activity before Wachovia’s motion was the filing of an order on March 11, 2002. The only activity of record that occurred within the year preceding March 17, 2003, was the withdrawal of a defense attorney and th…
Authorities Cited
- Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla. 1972)
- Douglas v. State, 319 So. 2d 181 (Fla. 1st DCA 1975)
- Gov't Emps. Ins. Co. v. Wheelus, 270 So. 2d 409 (Fla. 4th DCA 1972)