GERALD L. PIERSTORFF, APPELLANT,
v.
JAMES M. STROUD, ALVA POPE, AND JOHN B. JOHNSON, INDIVIDUALLY AND AS TRUSTEES OF THE STROUD CONSTRUCTION COMPANY PENSION PLAN, APPELLEES
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This case clarifies that once a notice of trial is filed, a party has no duty to take further action to prevent dismissal for lack of prosecution. The court reversed a dismissal, holding that the trial court must take affirmative action to dismiss a case under such circumstances.
Once a proper notice of trial has been filed, a party has no duty to take affirmative action to prevent dismissal for lack of prosecution. The trial court must take affirmative action to dismiss the case.
[1] Once a notice of trial has been properly filed, a party has no duty to take affirmative action to prevent dismissal for failure to prosecute, even with a year of no recor…
[2] The 1976 amendment to Florida Rule of Civil Procedure 1.420(e), adding the phrase "on the face of the record," does not alter the rule that a properly filed notice of tri…
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Join FLexlaw to unlock all legal intelligence“Once a proper notice of trial has been filed pursuant to Florida Rule of Civil Procedure 1.440(b), a party has no duty to take any affirmative action to prevent dismissal of a cause for failure to prosecute, despite the lack of record activity during the ensuing year.”
This quote establishes the core legal principle regarding the duty of parties after filing a notice of trial.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe plaintiff filed a notice of trial in December 1981, and no further activity occurred in the case for over a year. In December 1982, the defendant …
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SCHEB, Judge.
In this case the plaintiff filed a notice of trial in the circuit court on December 7, 1981. The case remained on the court’s waiting list with no further activity occurring until December 29, 1982, when the defendant filed a motion to dismiss for lack of prosecution. On March 10, 1983, the trial court granted the motion and dismissed the suit, noting that “the 1976 change to Rule 1.420(e) [Florida Rules of Civil Procedure] by the addition of the language ‘on the face of the record’ requires the filing of some motion, pleading, order or other paper by a party to prevent the application of the rule.” This appeal by the plaintiff ensued.
Once a proper notice of trial has been filed pursuant to Florida Rule of Civil Procedure 1.440(b), a party has no duty to take any affirmative action to prevent dismissal of a cause 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), cert. denied, 334 So. 2d 604 (Fla.1976). The addition of the language “on the face of the record” in the 1976 amendment to Rule 1.420(e) does not alter the duty of the trial court to take affirmative action once a notice of trial has been properly filed pursuant to Rule 1.440(b). Sarasota Cattle Co. v. Mikos, 431 So. 2d 260 (Fla. 2d DCA 1983); Yankee Construction Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA 1983). Accord Fox v. Playa Del Sol Ass’n., 446 So. 2d 126 (Fla. 4th DCA 1983). Contra Palatka Housing Authority v. Betts, 349 So. 2d 784 (Fla. 1st DCA 1977) (Boyer, J., dissenting); Brennan v. Ryter, 339 So. 2d 661 (Fla. 1st DCA 1976), cert. denied, 348 So. 2d 944 (Fla.1977); and Allen v. Gaither, 112 So. 2d 855 (Fla. 1st DCA 1959).
In fairness to the trial judge, we note that at the time he entered the order appealed from, there was no precedent governing the issue in this district, only disparate rulings by the First and Third Districts.
We reverse the order dismissing plaintiff’s cause for lack of prosecution and remand with directions to reinstate the cause.
GRIMES, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So. 2d 422 (Fla. 2d DCA 2006)…urt from dismissing the action for lack of prosecution.”). Failure of the trial court to set the case for trial precludes dismissal for failure to prosecute despite the lack of record activity. Reyes, 895 So. 2d at 1274-75; see Pierstorff v. Stroud, 454 So. 2d 564, 565 (Fla. 2d DCA 1983). This matter was never scheduled for trial after Mr. Cabrera filed his notice for jury trial.3 The trial court abused its discretion when it dismissed Mr. Cabrera’s complaint for failure to prosecute pursuant to rule 1.420(e…
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Arleen Hansen Carlson v. Jeflis Prop. Mgmt. Corp., 904 So. 2d 642 (Fla. 2d DCA 2005)…a proper notice for trial1 bars the court from dismissing the action for lack of prosecution. See, Mikos v. Sarasota Cattle Co., 453 So. 2d 402 (Fla.1984); Young v. Mobile Dental Health, Inc., 730 So. 2d 766 (Fla. 2d DCA 1999); Pierstorff v. Stroud, 454 So. 2d 564 (Fla. 2d DCA 1983); Rodriguez v. Gonzalez Moving & Storage Co., 595 So. 2d 275 (Fla. 3d DCA 1992).2 As the Fourth [*645] District stated in Fox v. Playa Del Sol Ass’n, 446 So. 2d 126 (Fla. 4th DCA 1983), “After notice of trial, absent any other happ…
Authorities Cited
- City OF Miami v. Dade Cnty., 321 So. 2d 140 (Fla. 3d DCA 1975)
- Wilburn Combs v. Atl. Coast Line R.R. Co., 112 So. 2d 855 (Fla. 1st DCA 1959)
- Allen v. Gaither, 112 So. 2d 855 (Fla. 1st DCA 1959)
- Palatka Hous. Auth. v. Queen Betts, 349 So. 2d 784 (Fla. 1st DCA 1977)
- T.M.R. v. State, 446 So. 2d 126 (Fla. 2d DCA 1983)
- Yankee Constr. Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA 1983)
- Brennan v. Ryter, 339 So. 2d 661 (Fla. 1st DCA 1976)
- Sarasota Cattle Co. & Charles E. Early v. Mikos, 431 So. 2d 260 (Fla. 2d DCA 1983)