BISCAYNE CONSTRUCTION COMPANY, APPELLANT,
v.
METROPOLITAN DADE COUNTY, DR. DAVID THORNBURGH, WALTER G. ROGGLES AND ROY C. HOSFORD, 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.
Biscayne Construction Company's complaint was dismissed for lack of prosecution. The appellate court reversed, holding that Biscayne's procurement of a pluries summons for a prospective third-party defendant within the year preceding the dismissal motion constituted sufficient record activity to defeat the motion to dismiss.
The court held that: (1) procurement of a pluries summons to a prospective third-party defendant, reflected in the clerk's progress docket, constitutes sufficient record activity under Florida Rule of Civil Procedure 1.420(e) to defeat a motion to dismiss; and (2) such record activity, though directed at a third-party defendant and unrelated to the original complaint, is sufficient to preclude dismissal of any part of the case when causes of action have not been severed.
[1] Sufficient record activity under Florida Rule of Civil Procedure 1.420(e) exists to defeat a motion to dismiss when a party procures the issuance of a pluries summons to…
[2] Procuring the issuance of a summons against a third-party defendant, even if unrelated to the original complaint, is sufficient record action to preclude dismissal of any…
Previewing 2 of 3 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“where during the year preceding the filing of the motion to dismiss, Biscayne procured the issuance of a pluries summons to a prospective third-party defendant which Biscayne, with leave of court, sought to join in defense of Thornburgh's counterclaim, and this action is reflected in the clerk's progress docket, there exists sufficient record activity under Florida Rule of Civil Procedure 1.420(e) to defeat a motion to dismiss”
Establishes the standard for what constitutes sufficient record activity to defeat dismissal for lack of prosecution
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBiscayne Construction Company filed a complaint against Metropolitan Dade County, Dr. David Thornburgh, Walter G. Roggles, and Roy C. Hosford. Dr. Tho…
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 Complaint cases and more on FLexlaw
DANIEL S. PEARSON, Judge.
We reverse the order of the trial court which dismissed for lack of prosecution Biscayne Construction Company’s complaint and Dr. Thornburgh’s permissive counterclaim against Biscayne upon a holding that (1) where during the year preceding the filing of the motion to dismiss, Biscayne procured the issuance of a pluries summons to a prospective third-party defendant which Biscayne, with leave of court, sought to join in defense of Thornburgh’s counterclaim, and this action is reflected in the clerk’s progress docket, there exists sufficient record activity under Florida Rule of Civil Procedure 1.420(e) to defeat a motion to dismiss, see Waiswilos v. Feacher, 370 So. 2d 1250 (Fla. 4th DCA 1979); (2) the record action of Biscayne in procuring the issuance of this summons, albeit directed against a third-party defendant and unrelated to Biscayne’s original complaint against Roggles, Hosford, Dade County and Thornburgh, was sufficient to preclude dismissal of any part of the case, including Biscayne’s complaint and Thornburgh’s counterclaim against Biscayne, where the several causes of action were not severed, Phillips Petroleum Company v. Heimer, 339 So. 2d 284 (Fla. 3d DCA 1976); Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976); and (3) in light of these holdings, it is unnecessary to reach the questions (a) whether Thornburgh’s pending “motion” to set the cause for trial, filed almost two years prior to the dismissal, was the equivalent of a notice of trial under Florida Rule of Civil Procedure 1.440(c) so as to preclude dismissal, see City of Miami v. Dade County, 321 So. 2d 140 (Fla. 3d DCA 1975); see also Visuana v. Metropolitan Transit Authority, 353 So. 2d 183 (Fla. 3d DCA 1977); Downer v. Mercer, 324 So. 2d 116 (Fla. 3d DCA 1976); and (b) whether Biscayne otherwise established good cause why its action should remain pending.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Utset v. Campos, 548 So. 2d 834 (Fla. 3d DCA 1989)…403 So. 2d 581 (Fla. 4th DCA 1981) (dismissed defendant had not been served with the complaint; dismissal reversed); Shaw & Keeter Motor Co. v. Maris Distrib. Co., 403 So. 2d 570 (Fla. 1st DCA 1981); Biscayne Constr. Co. v. Metropolitan Dade County, 388 So. 2d 329 (Fla. 3d DCA 1980); Phillips Petroleum Co. v. Heimer, 339 So. 2d 284 (Fla. 3d DCA 1976), cert. denied, 348 So. 2d 948 (Fla.1977); Devaney v. Rumsch, 247 So. 2d 69 (Fla. 1st DCA 1971). . This "exception” has also been referred to in dicta in Smith v…
-
Mueller v. N. Broward Hosp. Dist., 403 So. 2d 581 (Fla. 4th DCA 1981)…was not the result of a motion served on appellee, the motion having been served only on the district. The record activity need not be directed to or instituted by the party who seeks dismissal. Biscayne Construction Co. v. Metropolitan Dade County, 388 So. 2d 329 (Fla.3d DCA 1980); Phillips Petroleum Co. v. Heimer, 339 So. 2d 284 (Fla.3d DCA 1976), cert. denied 348 So. 2d 948 (Fla.1977). Based on the foregoing we are compelled to reverse. In so doing, however, we take note that this court affirmed the trial…
-
Monroe Gelb and Carl A. Spatz v. Miranda, 456 So. 2d 548 (Fla. 3d DCA 1984)…should be denied. Collado v. C & C Cattle Co., 415 So. 2d 901 (Fla. 3d DCA 1982); Florida East Coast Railway v. Russell, 398 So. 2d 949 (Fla. 4th DCA), review denied, 411 So. 2d 381 (Fla.1981); Biscayne Construction Co. v. Metropolitan Dade County, 388 So. 2d 329 (Fla. 3d DCA 1980). Here plaintiff-appellant’s notice of hearing on defendant’s pending motions was filed only four days before the defendant’s motion to dismiss for failure to prosecute. Since a notice of hearing is sufficient record activity to…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Miami v. Dade Cnty., 321 So. 2d 140 (Fla. 3d DCA 1975)
- Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976)
- Visuna v. Metro. Transit Auth. & Nathanial Billy Davis, 353 So. 2d 183 (Fla. 3d DCA 1977)
- Phillips Petroleum Co. v. Art Heimer, 339 So. 2d 284 (Fla. 3d DCA 1976)
- Waiswilos v. Feacher, 370 So. 2d 1250 (Fla. 4th DCA 1979)
- Downer v. Mercer, 324 So. 2d 116 (Fla. 3d DCA 1975)