FLORIDA EAST COAST RAILWAY COMPANY, APPELLANT/CROSS-APPELLEE,
v.
SOUTHERN SANITATION SERVICE, A FLORIDA CORPORATION, APPELLEE/CROSS-APPELLANT, V. CITY OF DELRAY BEACH, A MUNICIPAL CORPORATION, APPELLEE
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Florida East Coast Railway Company appeals the dismissal of its action for lack of prosecution. The court reverses, holding that there was sufficient record activity within one year preceding the motion to dismiss, and therefore the trial court erred in dismissing the case under Florida Rule of Civil Procedure 1.420(e).
The trial court erred in dismissing the cause for failure to prosecute because there was record activity within one year preceding the motion to dismiss. Under Florida Rule of Civil Procedure 1.420(e), mere inaction for a period of less than one year is not sufficient cause for dismissal for failure to prosecute.
[1] A trial court errs in dismissing a cause for failure to prosecute when there has been record activity within one year preceding the motion to dismiss.
[2] Mere inaction for a period of less than one year is insufficient cause for dismissal for failure to prosecute under Florida Rule of Civil Procedure 1.420(e).
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Join FLexlaw to unlock all legal intelligence“Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.”
This quote establishes the controlling standard under Florida Rule of Civil Procedure 1.420(e) that governed the trial court's dismissal decision.
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Join FLexlaw to unlock all legal intelligenceFEC filed supplemental interrogatories on June 25, 1976, and the City of Delray Beach answered them on July 2, 1976. On June 27, 1977, Southern Sanita…
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PER CURIAM.
The trial court dismissed Florida East Coast Railway Company’s (hereinafter FEC) action for lack of prosecution. We reverse.
The record discloses that on June 25, 1976, FEC filed supplemental interrogatories directed to the City of Delray Beach and that on July 2, 1976, the City filed its answers to the interrogatories. On June 27, 1977, Southern Sanitation Service, Inc., moved to dismiss the cause for lack of prosecution and on July 12, 1977, FEC responded to said motion, noticed two depositions and filed an at-issue notice of trial. The trial court granted the motion to dismiss on July 28, 1977.
Following the denial of its motion for reconsideration, FEC on September 23, 1977, filed a notice of appeal of the July 28, 1977 trial court order of dismissal. We dismissed that appeal as untimely.1 Florida East Coast Railway Company v. Southern Sanitation Service, Inc., 370 So. 2d 1200 (Fla. 4th DCA 1979). Thereafter the trial court entered a final judgment of dismissal without prejudice on September 5, 1979 which dismissed the proceeding as to all claims and all parties. FEC brought this appeal from that final judgment.
Initially we hold that we have jurisdiction to consider the present appeal from the final judgment. See Fla.R.App.P. 9.130(g). We further conclude that the trial court erred in dismissing the cause for failure to prosecute because there was record activity within one year preceding the motion to dismiss. Bair v. Paim Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980); Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla.1972); American Salvage and Jobbing Company, Inc. v. Salomon, 367 So. 2d 716 (Fla.3d DCA 1979). As we pointed out in Bair, supra, Florida Rule of Civil Procedure 1.420(e) now provides in part: “Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.”
Accordingly, we reverse and remand with directions to reinstate the cause on the docket for further proceedings toward a trial on the merits.
REVERSED and REMANDED WITH DIRECTIONS.
DOWNEY and GLICKSTEIN, JJ., and FUTCH, M. DANIEL, Jr., Associate Judge, concur. . We held that at that time the order was non-final and appealable as an interlocutory appeal pursuant to Florida Rule of Appellate Procedure 4.2(a) (1962). Therefore, the motion for reconsideration, treated as a motion for rehearing, did not toll the time for filing the notice of appeal. As a result the notice, filed 57 days after the trial court’s order of July 28, 1977, was not timely. Florida East Coast Railway Company v. Southern Sanitation Service, Inc., 370 So. 2d 1200 (Fla. 4th DCA 1979).
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Marschall v. Water-Boggan Int'l, Inc., 401 So. 2d 1157 (Fla. 3d DCA 1981)…the time between the date of filing the last affirmative act and the date of the filing of the motion to dismiss or abate for failure to proceed according to the mandate of the rule. Florida East Coast Railway Company v. Southern Sanitation Service, 392 So. 2d 355 (Fla. 4th DCA 1981); Ace Delivery Service, Inc. v. Pickett, 274 So. 2d 15 (Fla.2d DCA 1973). The order of March 25, 1980, requiring reservice of process, was record activity. The return of the alias summonses and substituted service likewise consti…
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Mueller v. N. Broward Hosp. Dist., 403 So. 2d 581 (Fla. 4th DCA 1981)…o. 2d 517 (Fla. 4th DCA 1980). We said in Bair that an order vacating a dismissal, if not a stipulation to permit filing of an amended complaint, was sufficient record activity. See also Florida East Coast Railway Co. v. Southern Sanitation Service, 392 So. 2d 355 (Fla. 4th DCA 1981). Here we have an order granting appellant leave to file an amended complaint entered prior to the filing of Dickens’ motion to dismiss; and such order is sufficient record activity. It makes no difference that the subject order…
Authorities Cited
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Am. Salvage & Jobbing Co., Inc. v. Jacque Salomon, 367 So. 2d 716 (Fla. 3d DCA 1979)
- Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980)
- Fla. E. Coast Ry. Co. v. S. Sanitation Serv., Inc., 370 So. 2d 1200 (Fla. 4th DCA 1979)