JAY MARSCHALL AND MARILYN MARSCHALL, HIS WIFE, APPELLANTS,
v.
WATER-BOGGAN INTERNATIONAL, INC., A DELAWARE CORPORATION; WATER-BOGGAN CONSTRUCTION COMPANY, A FLORIDA CORPORATION; GREGORY ANDERS; NEVILLE B. RICH; WALTER B. ROOKE; AND CHARLES MATHESON, APPELLEES
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The Marschalls appealed the trial court's dismissal of their lawsuit for want of prosecution under Florida Rule of Civil Procedure 1.420(e). The appellate court reversed, finding that court orders requiring reservice of process and the subsequent service of process constituted sufficient record activity to prevent dismissal.
The dismissal was improper because the March 25, 1980 order requiring reservice and the subsequent service of alias summonses constituted record activity within the one-year period preceding the dismissal motion, making the case ineligible for dismissal under Rule 1.420(e).
[1] An order of court constitutes record activity for purposes of Florida Rule of Civil Procedure 1.420(e).
[2] The computation of time for dismissal of actions under Florida Rule of Civil Procedure 1.420(e) is determined by calculating the time between the date of filing the last…
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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”
The controlling rule governing dismissal for want of prosecution, establishing that 'order of court' is record activity
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Join FLexlaw to unlock all legal intelligenceThe plaintiffs filed their action in 1977. In October 1978, the court granted an order allowing withdrawal of defendants' counsel and postponed hearin…
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NESBITT, Judge.
The appellants, plaintiffs below, appeal an order dismissing their complaint, for want of prosecution, entered pursuant to Florida Rule of Civil Procedure 1.420(e).
The plaintiffs’ original action was commenced in 1977. On October 17, 1978, the court granted an order pursuant to a stipulation permitting the withdrawal of counsel for the defendants and postponing hearings on all pending motions until such time as new counsel of record for the defendants file an appearance. The defendants did not cause a new attorney of record to appear on their behalf. On March 25, 1980, on its own initiative, the trial court entered an order requiring reservice of all resident and nonresident defendants. Alias summonses were issued and substituted service was ostensibly perfected upon all defendants. On August 27, 1980, a notice of hearing on motion for order of dismissal was initiated by the court requiring the plaintiffs to show good cause in writing before September 16, 1980 why the cause should not be dismissed for want of prosecution. The plaintiffs timely filed a response reciting the foregoing facts. Nonetheless, the court dismissed the plaintiffs’ complaint for want of prosecution by order entered October 3, 1980.
Florida Rule of Civil Procedure 1.420(e) provides that:
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 ....
By the terms of the rule, an “order of court” constitutes record activity. The computation of time for dismissal of actions is determined by calculating 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 constituted record activity. Therefore, the October 3, 1980 order dismissing the action was improper because there was record activity during the one-year period preceding the motion for dismissal.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983)…hereon). Record activity held sufficient to preclude dismissal: Johnson v. Mortgage Investors of Washington, 410 So. 2d 541 (Fla. 2d DCA 1982) (defendant’s motion to dismiss for failure to prosecute); Marschall v. Water-Boggan International, Inc., 401 So. 2d 1157 (Fla. 3d DCA 1981) (order requiring reservice of process and return of the alias summons and substituted service constitute record activity); but cf., Giraldo v. Cossin, 399 So. 2d 540 (Fla. 3d DCA 1981); Thomas v. Personal Representative of Estate…
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Hale v. Hart Props., Inc., 436 So. 2d 1093 (Fla. 3d DCA 1983)…on August 17, 1982. Since the latter event, at the least, constituted appropriate record activity in the cause within one year of the filirig of the defendant’s motion to dismiss on September 27, 1982, Marschall v. Water-Boggan International, Inc., 401 So. 2d 1157 (Fla. 3d DCA 1981); see De Benitz v. Russel, 430 So. 2d 524 (Fla.3d DCA 1983), the order under review is Reversed.…
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Koenig v. Delotte Haskins & Sells, 474 So. 2d 305 (Fla. 3d DCA 1985)…nactivity pursuant to Rule 1.420, Florida Rules of Civil Procedure. See and Compare Eastern Elevator, Inc., v. Page, 263 So. 2d 218 (Fla.1972); Nektaredes v. Sagonias, 432 So. 2d 769 (Fla. 2d DCA 1983); Marschall v. Water-Boggan International, Inc., 401 So. 2d 1157 (Fla. 3d DCA 1981); DeVaney v. Rumsch, 247 So. 2d 69 (Fla. 1st DCA 1971). The order under review dismissing the cause is reversed for further proceedings. Reversed and remanded.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- ACE Delivery Serv., Inc. v. Pickett, 274 So. 2d 15 (Fla. 2d DCA 1973)
- Fla. E. Coast Ry. Co. v. S. Sanitation Serv., 392 So. 2d 355 (Fla. 4th DCA 1981)