MELVIN J. BOGART AND EVA BOGART, HIS WIFE, APPELLANTS,
v.
F.B. CONDOMINIUMS, INC., ET AL., APPELLEES
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Appellants filed suit and later provided notice of trial, which led to a trial date being set. However, appellants then requested a continuance citing unpreparedness due to client absence, and the trial was reset to an indefinite date in the fourth quarter of 1978 or later. When no trial date was subsequently scheduled and over one year passed without record activity, the case was dismissed for failure to prosecute. The court affirmed, holding that while a proper notice of trial may prevent dismissal, once a trial is actually set and then continued, a new notice of trial is required to avoid dismissal, and parties must take affirmative action to reschedule when the original trial date becomes obsolete.
The court affirmed dismissal for failure to prosecute, holding that while a proper notice of trial can prevent dismissal when no trial order is forthcoming, once a trial date is actually set and then continued to an indefinite future date, the notice of trial does not carry over beyond that setting and continuance. A new notice of trial is required if parties wish to reschedule and avoid dismissal.
[1] A trial court may dismiss a complaint for failure to prosecute if there has been no record activity for more than one year and the plaintiff has not shown good cause for…
[2] Filing a notice for trial generally relieves a party of the duty to take further affirmative action to prevent dismissal for failure to prosecute, provided the case is no…
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Join FLexlaw to unlock all legal intelligence“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”
Establishes the general rule from prior precedent that appellants relied upon
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Join FLexlaw to unlock all legal intelligenceAppellants Melvin and Eva Bogart filed a complaint against F.B. Condominiums, Inc. They filed a proper notice of trial, which resulted in a trial date…
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EDWARD F. THREADGILL, Jr., Associate Judge.
This is an appeal from an order dismissing appellants’ complaint for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). The issue presented below was whether appellant showed good cause for an absence of record activity for more than one year. The trial judge found that good cause was not shown and dismissed the complaint. We agree that no good cause 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 (Fla. 2d DCA 1983).
In the instant case a proper notice of trial was filed, and the case was set for trial. However, appellants’ attorney then filed a motion for continuance averring that due to the extended absence of some of his clients, he could not adequately prepare for trial. Pursuant to appellants’ motion, the court entered an order continuing the trial “until a date during the fourth quarter of 1978 or thereafter to be established by this court.” Thereafter, additional record activity occurred, including discovery by the appellants. However, the case was never rescheduled for trial. Finally, after a twelvemonth lapse in record activity, the court granted appellees’ motion to dismiss for lack of prosecution.
The point which distinguishes this case from those relied on by appellants is that here the court followed through on appellants’ notice for trial by setting the case for trial. The reason why the case was not tried on the appointed date was that the appellants were not ready. Though the ease could only be reset for trial by a court order, if a dismissal for lack of prosecution was to be avoided, it was incumbent upon the appellants to advise the court when the case was ready by the filing of a new notice of trial. If appellants were relying upon the court’s reference to the setting of a trial date during the fourth quarter of 1978, this was dispelled when the trial was not set during that time period.
While we adhere to our view that the filing of a proper notice of trial is sufficient to avoid a dismissal for lack of-prosecution when an order of trial is not forthcoming, we do not believe that a notice of trial once filed carries over beyond the setting of a trial date and a subsequent order of continuance. The caseload of our courts is such that the parties must bear their share of the burden of seeing to a prompt disposition of the trial docket.
AFFIRMED.
HOBSON, A.C.J., and GRIMES, J., concur.
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Fishe & Kleeman, Inc. v. Aquarius Condo. Ass'n, Inc., 524 So. 2d 1012 (Fla. 1988)…, “the litigants have an obligation to re-notice the case for trial or at least initiate some action to alert the Court that the case needs to be reset.”3 503 So. 2d at [*1015] 1274. As the second district noted in Bogart v. F.B. Condominiums, Inc., 438 So. 2d 856, 857 (Fla. 2d DCA 1983), review denied, 449 So. 2d 264 (Fla.1984), “[t]he caseload of our courts is such that the parties must bear their share of the burden of seeing to a prompt disposition of the trial docket.” We disapprove Visuna. To the extent…1 / 2
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Govayra v. Straubel, 466 So. 2d 1065 (Fla. 1985)…444 So. 2d 1022 (Fla. 3d DCA 1984), which reversed the trial court’s order dismissing the complaint for failure to prosecute pursuant to Rule 1.420(e) of the Florida Rules of Civil Procedure. The decision conflicts with Bogart v. F.B. Condominiums, 438 So. 2d 856 (Fla. 2d DCA 1983) and with Executive Commercial Services v. South Florida Parts & Supply, 361 So. 2d 737 (Fla. 4th DCA 1978). We [*1066] have jurisdiction. Art. V, § 3(b)(3), Fla.Const. Because we find the trial judge correctly entered the order of…
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Morris v. NN Invs. Life Ins. Co., Inc., 553 So. 2d 1306 (Fla. 3d DCA 1989)…the calendar to be re-noticed by any party. The supreme court stated in Fishe & Kleeman, Inc. v. Aquarius Condominium Ass’n, Inc., 524 So. 2d 1012, 1014 (Fla.1988), adopting the reasoning of the Second District in Bogart v. F.B. Condominiums, Inc., 438 So. 2d 856 (Fla. 2d DCA 1983), review denied, 449 So. 2d 264 (Fla.1984) that when a case is continued once notice for trial is given, “the litigants have an obligation to" re-notice the case for trial or at least initiate some action to alert the Court that th…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yankee Constr. Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA 1983)
- Sarasota Cattle Co. & Charles E. Early v. Mikos, 431 So. 2d 260 (Fla. 2d DCA 1983)