MARIE C. HERSEY AND BETTY F. GREENMAN, TRUSTEES, ETC., ET AL., APPELLANTS,
v.
GEORGE E. BATCHELOR AND DENNIS M. OLSEN, APPELLEES
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The filing of an appellate court's opinion and mandate in the trial court constitutes record activity, preventing dismissal for lack of prosecution under Rule 1.420(e).
The trial court dismissed an action for lack of prosecution. This occurred despite the filing of an appellate court's opinion and mandate within the o…
The full statement of facts, procedural history, and disposition for this case are member content.
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ORFINGER, Chief Judge.
The narrow issue presented by this appeal is whether an opinion and mandate of an appellate court, when filed in the trial court, constitutes record activity so as to preclude a dismissal of the action for lack of prosecution under Florida Rule of Civil Procedure 1.420(e) (1980).1 The trial court dismissed the action, notwithstanding the filing in the trial court of the opinion and mandate of this court resulting from an earlier appeal within the one-year period immediately prior to the filing of the motion to dismiss. We reverse.
The filing of the opinion and mandate of this court following the earlier appeal from a non-final order constituted activity of record as defined by the rule. See Ortiz v. Biscayne Medical Center, Inc., 385 So. 2d 1146 (Fla. 3d DCA 1980); Murphy White Dairy, Inc. v. Simmons, 405 So. 2d 298 (Fla. 4th DCA 1981). It is an order of court which, if filed within the one-year period prior to the filing of the motion to dismiss, precludes dismissal under the rule for failure to prosecute.
The order dismissing the action is reversed and the cause is remanded for further proceedings.
REVERSED and REMANDED.
FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur. . Fla.R.Civ.P. 1.420(e):
Failure to Prosecute. 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. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McBride v. Keller (Fla. 5th DCA 2026)…isdiction to enter an order dismissing a complaint with prejudice on the same day an appellate court dismisses an appeal because the lower tribunal's jurisdiction is not automatically restored until the appellate mandate issues. Hersey v. Batchelor, 433 So. 2d 558, 559 (Fla. 5th DCA 1983) (the filing of the appellate court's opinion and mandate in the trial court constitutes record activity that restores the lower tribunal's jurisdiction); see also Mandrachia v. Ravenswood Marine, Inc., 118 So. 2d 817, 821 (F…
Authorities Cited
- Murphy White Dairy, Inc. v. Simmons, 405 So. 2d 298 (Fla. 4th DCA 1981)
- Ortiz v. Biscayne Med. Ctr., Inc., 385 So. 2d 1146 (Fla. 3d DCA 1980)