VIRGINIA K. JOHNSON, APPELLANT,
v.
MORTGAGE INVESTORS OF WASHINGTON, A MARYLAND BUSINESS TRUST, CARIBBEAN GULF HOTEL, A FLORIDA CORPORATION, AND AETNA CASUALTY & SURETY CORPORATION, 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.
The court held that the dismissal for failure to prosecute was erroneous because the motion to dismiss was filed prematurely.
The plaintiff's action was dismissed for failure to prosecute after one defendant filed a motion to dismiss one day before the one-year period of inac…
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 Florida Rule Of Civil Procedure 1.420(E) (Dismissal For Lack Of Prosecution) cases and more on FLexlaw
DANAHY, Judge.
The plaintiff appeals an order dismissing her action for failure to prosecute. We reverse.
Rule 1.420(e), Florida Rules of Civil Procedure, provides for the dismissal of an action 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, unless the proceedings have been stayed or good cause is shown why the action should remain pending. In this case, one of the defendants filed a notice to produce on April 7, 1980. No further record activity occurred until April 7, 1981, when the same defendant filed a motion to dismiss for failure to prosecute as provided in rule 1.420(e). That motion was filed one day prematurely, and for this reason the granting of the motion and dismissal of the action was error. The general rule for computing the time within which a thing must be done is to count the time by excluding the day on which the initial act occurred and including the corresponding future date. Scarlett v. Frederick, 147 Fla. 407, 3 So. 2d 165 (1941); Fla.R.Civ.P. 1.090(a). Accordingly, the one-year period following April 7, 1980 (the date on which the notice to produce was filed), did not expire until April 8, 1981. The filing of the motion to dismiss on April 7, 1981, constituted record activity within that one-year period. Thus the action was not subject to dismissal under rule 1.420(e).
REVERSED and REMANDED.
BOARDMAN, A. C. J., and SCHOON-OVER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Barnett Bank OF E. Polk Cnty. v. Fleming, 508 So. 2d 718 (Fla. 1987)…n motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties.... . In so holding, the Second District receded from its prior holding in Johnson v. Mortgage Investors of Washington, 410 So. 2d 541 (Fla. 2d DCA 1982). The Third and Fifth Districts reached similar conclusions in Inman, Inc. v. Miami Dade Water and Sewer Authority, 489 So. 2d 218 (Fla. 3rd DCA 1986), and Carter v. Cerezo, 495 So. 2d 202 (Fla. 5th DCA 1986). . Although under dif…
-
Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983)…ack of prosecution); Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So. 2d 744 (Fla. 3d DCA 1977) (substitution of counsel and order thereon). 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 serv…
-
Fleming v. Barnett Bank OF E. Polk Cnty., 490 So. 2d 126 (Fla. 2d DCA 1986)…nt to Florida Rule of Appellate Procedure 9.331(b), the court determined to consider en banc the effect of a prematurely-filed motion to dismiss for lack of prosecution in light of this court’s opinion in Johnson v. Mortgage Investors of Washington, 410 So. 2d 541 (Fla. 2d DCA 1982), in which we held that such a motion constituted record activity. In the instant matter, Barnett Bank of East Polk County filed a motion to dismiss for lack of prosecution on November 9, 1984. There had been record activity up to…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scarlett v. Frederick, 147 Fla. 407 (Fla. 1941)