DOROTHY FUNKE, INDIVIDUALLY AND DOROTHY FUNKE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LOUIS FUNKE, DECEASED, APPELLANT,
v.
HECTOR LOPEZ, EUGENIO SILVA AND LUMBERMEN'S MUTUAL CASUALTY COMPANY, A FOREIGN CORPORATION, APPELLEES
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Appellant sought reversal of a dismissal for failure to prosecute under Florida Rule of Civil Procedure 1.420(e). The court held that pursuing an arbitration proceeding on a separate uninsured motorist claim does not constitute sufficient activity to avoid dismissal when no activity has occurred in the underlying action for over one year.
The court held that non-record activity in pursuing another claim against someone else is not sufficient good cause to avoid dismissal under Rule 1.420(e), absent a showing of a compelling reason. Pursuing an arbitration proceeding on a separate uninsured motorist claim does not constitute sufficient activity to prevent dismissal of the underlying action.
[1] An action may be dismissed for lack of prosecution if no record activity occurs for one year, absent a stipulation staying the action, a filed stay order, or a written sh…
[2] Prosecuting a separate arbitration claim against an insurance company does not constitute sufficient "activity" or "good cause" to prevent dismissal of a civil action for…
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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 or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending.”
Establishes the text of Florida Rule of Civil Procedure 1.420(e) governing dismissal for lack of activity.
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Join FLexlaw to unlock all legal intelligenceAppellant was injured in an automobile collision in 1976 and filed suit in 1979 against appellees for personal injuries and loss of consortium. On Mar…
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HENDRY, Judge.
Appellant was injured in an automobile collision in 1976. Three years later, she filed suit against appellees to recover for her personal injuries and her husband’s loss of consortium. On March 23, 1979, appellant filed a motion to compel better answers to interrogatories. Thereafter nothing was filed of record for over one year, until May 28, 1982 when appellees filed a motion to dismiss for failure of appellant to prosecute her cause of action. The motion to dismiss was granted pursuant to Florida Rule of Civil Procedure 1.420(e), which provides in pertinent part:
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 or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. ... Appellant seeks reversal of the order of dismissal on the ground that there was action “otherwise” in that she had an arbitration proceeding in progress on an uninsured motorist claim against her own insurance company, and it was her intention to consolidate the arbitration proceeding with the action against appellee immediately following the arbitration award which was set at $50,000.00 on May 5, 1982.
It is appellant’s contention that the prosecution of the arbitration claim was such activity as to foster a disposition of the claim, which established “good cause” under Rule 1.420(e) because the arbitration claim was an essential step toward the ultimate disposition of the action. We can not agree.
Since the 1977 amendment to the Rule, non-record activity in pursuing another claim against someone else is not sufficient good cause, absent a showing of a compelling reason, to avoid dismissal. See Tosar v. Sladek, 393 So. 2d 61 (Fla. 3d DCA 1981); American Eastern Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980); Perez v. Cohen, 362 So. 2d 985 (Fla. 3d DCA), cert. denied, 365 So. 2d 710 (Fla.1978); cert. denied, 368 So. 2d 1372 (Fla.1979).
We hold that the trial court was correct in dismissing the action pursuant to Florida Rule of Civil Procedure 1.420(e). Accordingly, the order appealed is affirmed.
Affirmed.
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Maler v. Baptist Hosp. OF Miami, Inc., 532 So. 2d 79 (Fla. 3d DCA 1988)…lawsuit in the event the other lawsuit was dismissed. See American Eastern Corp. v. Henry Blanton, Inc., 382 So. 2d 863, 865 (Fla. 2d DCA 1980); Estate of Mills v. Florida Ins. Guar. Ass’n, 378 So. 2d 301, 302 (Fla. 3d DCA 1979); cf. Funke v. Lopez, 432 So. 2d 787, 788 (Fla. 3d DCA 1983) (non-record activity in a separate lawsuit against different (not same, as here) party not “sufficient good cause”); Perez v. Cohen, 362 So. 2d 985 (Fla. 3d DCA 1978) (participation in appeal of a related, though not identica…
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Palokonis v. EGR Enters., Inc., 652 So. 2d 482 (Fla. 5th DCA 1995)…So. 2d 985 (Fla. 3d DCA), cert. denied, 365 So. 2d 710 (Fla.1978), the court stated that participation in an appeal of a related case does not constitute good cause and cannot be used to avoid a dismissal for failure to prosecute. In Funke v. Lopez, 432 So. 2d 787 (Fla. 3d DCA 1983), participation in an arbitration proceeding in a case not directly related was not good cause. Finally, in Smith v. DeLoach, 556 So. 2d 786 (Fla. 2d DCA), rev. denied, 564 So. 2d 1087 (Fla.1990), the court stated that, in order to…
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Stephens v. BAY Med. Ctr., 742 So. 2d 297 (Fla. 1st DCA 1998)…rt granted the motion. Although both parties have cited a number of cases as authority, none of those cases is directly on point. Appellees rely particularly on Palokonis v. EGR Enterprises, Inc., 652 So. 2d 482 (Fla. 5th DCA 1995), Funke v. Lopez, 432 So. 2d 787 (Fla. 3d DCA 1983), and Perez v. Cohen, 362 So. 2d 985 (Fla. 3d DCA), cert. denied 365 So. 2d 710 (Fla.1978), cert. denied 368 So. 2d 1372 (Fla.1979), all of which are distinguishable, as they did not involve cases based on interrelated facts which…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Am. E. Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980)
- Moore v. Moore, 393 So. 2d 61 (Fla. 3d DCA 1981)
- Perez v. Ran M. Cohen, 362 So. 2d 985 (Fla. 3d DCA 1978)