YANKEE CONSTRUCTION CORPORATION, APPELLANT,
v.
JONES-MAHONEY CORPORATION, TAMPA PORT AUTHORITY AND UNITED STATES FIDELITY AND GUARANTY COMPANY, APPELLEES
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A party is not required to take further affirmative action to prevent dismissal for failure to prosecute once a proper notice of trial has been filed.
Appellant filed a complaint in 1978 and a notice for trial in 1981. No further action was taken, and appellees moved to dismiss for failure to prosecu…
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SCHOONOVER, Judge.
This is an appeal from a final judgment dismissing the appellant’s complaint against the appellees, Jones-Mahoney Corporation, Tampa Port Authority, and United States Fidelity and Guaranty Company for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). We reverse.
The appellant, Yankee Construction Corporation, commenced this action on December 5, 1978. After the action was at issue, on April 10, 1981, the appellant filed a notice for trial pursuant to Florida Rule of Civil Procedure 1.440(b). There was no further record activity in connection with the action, and on April 15, 1982, the appellees filed a motion to dismiss for failure to prosecute pursuant to rule 1.420(e). On June 1, 1982, the trial court entered an order dismissing the action.
The issue before us is whether the trial court properly dismissed the action after the appellant filed a proper notice of trial pursuant to rule 1.440(b) and then took no action for more than one year after filing the notice.
The appellant contends that it was not required to take any affirmative action once the notice of trial was filed. We agree. After a proper notice of trial is filed, a party has no duty to take any affirmative action to prevent dismissal of the cause by the trial court for failure to prosecute despite the lack of record activity during the ensuing year. City of Miami v. Dade County, 321 So. 2d 140 (Fla. 3d DCA 1975); Visuna v. Metropolitan Transit Authority, 353 So. 2d 183 (Fla. 3d DCA 1977); Fox v. Playa Del Sol Association, Inc.,So. 2d -, No. 81-2411 (Fla. 4th DCA Mar. 30, 1983); contra, Palatka Housing Authority v. Betts, 349 So. 2d 784 (Fla. 1st DCA 1977); compare, Sainer Constructors, Inc. v. School Board of Sarasota County, 352 So. 2d 947 (Fla. 2d DCA 1977). We accordingly reverse and remand for proceedings consistent herewith.
DANAHY, A.C.J., and LEHAN, J., concur.
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Mikos v. Sarasota Cattle Co. & Charles E. Early, 453 So. 2d 402 (Fla. 1984)…tice bars the trial court from dismissing the action for lack of prosecution, citing City of Miami v. Dade County, 321 So. 2d 140 (Fla. 3d DCA 1975), cert. denied, 334 So. 2d 604 (Fla.1976). See also Yankee Construction Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA 1983); R & A Trucking, Inc. v. General Host Corp., 399 So. 2d 1058 (Fla. 3d DCA 1981); Visuna v. Metroyolitan Transit Authority, 353 So. 2d 183 (Fla. 3d DCA 1977). We agree with the decision below in all respects. A trial judge has sol…
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Kubera v. Fisher, 483 So. 2d 836 (Fla. 2d DCA 1986)…was not filed until after the notice for trial had been filed. The filing of a notice for trial, when proper, constitutes record activity sufficient to preclude a dismissal for failure to prosecute. Yankee Construction Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA 1983). A notice for trial is properly filed when the action is ready for trial. Sarasota Cattle Co. v. Mikos, 431 So. 2d 260 (Fla. 2d DCA 1983), aff'd., 453 So. 2d 402 (Fla.1984). An action is ready for trial, or is “at issue,” after a…
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Bogart v. F.B. Condos., Inc., 438 So. 2d 856 (Fla. 2d DCA 1983)…was shown. The appellants now argue that we should reverse because the trial court failed to schedule the case for trial pursuant to appellants’ notice for trial. They rely on our recent opinion in Yankee Construction Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA 1983), in which we held that after a proper notice of trial is filed, a party has no duty to take any affirmative action to prevent dismissal of the cause for failure to prosecute. Accord Sarasota Cattle Co. v. Mikos, 431 So. 2d 260 (Fl…
Previewing 3 of 7 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)
- Visuna v. Metro. Transit Auth. & Nathanial Billy Davis, 353 So. 2d 183 (Fla. 3d DCA 1977)
- Palatka Hous. Auth. v. Queen Betts, 349 So. 2d 784 (Fla. 1st DCA 1977)
- Sainer Constructors, Inc. v. The Sch. Bd. OF Sarasota Cnty., 352 So. 2d 947 (Fla. 2d DCA 1977)