WAYNE E. CUMMINGS, APPELLANT,
v.
STEVE DAWSON, DEBORAH GIANOULIS, JOHN HOGAN, AND WTLV-CHANNEL 12, 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 dismissal with prejudice was proper because the appellant failed to prosecute and did not comply with statutory notice requirements for libel and slander, and the second count alleged a nonexistent cause of action.
Appellant appealed the trial court's dismissal of his second amended complaint alleging libel and slander, and "actionable harassment." The trial cour…
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 Libel And Slander cases and more on FLexlaw
WIGGINTON, Judge.
Appellant appeals the trial court’s order of dismissal with prejudice of his cause of action against appellees. We affirm.
Appellant’s second amended complaint alleged (1) libel and slander and (2) “actionable harassment.” At the hearing on the motion to dismiss, the trial judge gave the following statement of his basis for granting the motion:
Well I think for lack of prosecution as far as count I is concerned, and count II doesn’t state a cause of action. And I’m not sure that count I states a cause of action because of the notice statutes.
In his written order of dismissal, the trial judge did not state his reasons for granting the motion.
The record amply supports the order of dismissal on the several grounds listed by the trial judge at the motion hearing. The file before us shows no record activity occurred for a period exceeding one year as relates to these appellees. Thus, dismissal as to both counts was proper for failure to prosecute, pursuant to Florida Rule of Civil Procedure 1.420(e). Dismissal of the libel and slander count was proper also on the ground that appellant did not show adequately that he complied with the section 770.01, Florida Statutes requirement that a plaintiff must “serve notice in writing on the defendant specifying the article or broadcast and the statements therein which he alleges to be false and defamatory” before instituting his action for libel or slander. Dismissal of count II was proper on the additional ground that “actionable harassment” is a nonexistent cause of action.
We recognize that dismissal with prejudice would have been improper if lack of prosecution had been the only basis for dismissal. See Harrison v. Griffin, 443 So. 2d 499 (Fla. 1st DCA, 1984). However, since the alternative grounds stated above support dismissal with prejudice, the order of dismissal is affirmed.
LARRY G. SMITH and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Bank ONE, N.A. v. Harrod, 873 So. 2d 519 (Fla. 4th DCA 2004)…2, 456 (Fla. 2d DCA 2000). We observe that dismissal of this case cannot be upheld on the alternative ground of the one year delay in prosecution, since failure to prosecute permits only a dismissal without prejudice. See [*522] Cummings v. Dawson, 444 So. 2d 565 (Fla. 1st DCA 1984). Accordingly, we reverse the final judgment dismissing appellant’s case with prejudice and remand for further proceedings. On remand, the trial court may consider the imposition of other, lesser sanctions. REVERSED and REMANDED…
-
Mancini v. Personalized AIR Conditioning & Heating, Inc., 702 So. 2d 1376 (Fla. 4th DCA 1997)…the notice provision of section 770.01 requires dismissal of the complaint for failure to state a cause of action. See Gifford v. Bruckner, 565 So. 2d 887 (Fla. 2d DCA 1990); Davies v. Bossert, 449 So. 2d 418 (Fla. 3d DCA 1984); Cummings v. Dawson, 444 So. 2d 565 (Fla. 1st DCA 1984). If section 770.01 applies, defendant is entitled to certio-rari relief from the trial court’s refusal to dismiss the complaint for the failure to meet this pre-suit requirement. See Bridges v. Williamson, 449 So. 2d 400 (Fla. 2d…
-
Kamhi v. Waterview Towers Condo. Ass'n, Inc., 793 So. 2d 1033 (Fla. 4th DCA 2001)…determination of a prevailing party has been made.). Lastly, we affirm the dismissal of Kam-hi’s amended counterclaim with prejudice based on her failure to state a cause of action for injunctive relief based on harassment. See Cummings v. Dawson, 444 So. 2d 565 (Fla. 1st DCA 1984)(“actionable harassment” is a non-existent cause of action in Florida). Because we affirm the dismissal of Kamhi’s amended counterclaim, we likewise affirm Waterview’s award of attorney’s fees in defense of the amended counterclai…
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
- Harrison v. Griffin, 443 So. 2d 499 (Fla. 1st DCA 1984)