MONROE GELB AND CARL A. SPATZ, D/B/A GELB & SPATZ, A PARTNERSHIP, APPELLANTS,
v.
NELSON MIRANDA, APPELLEE
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The court held that a notice of hearing constitutes sufficient record activity to preclude dismissal for failure to prosecute under Rule 1.420(e).
[1] Sufficient record activity within the one-year period preceding a motion to dismiss for failure to prosecute requires denial of the motion.
[2] A notice of hearing constitutes sufficient record activity to preclude dismissal for failure to prosecute.
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Join FLexlaw to unlock all legal intelligenceAppellants' notice of hearing on pending motions was filed only four days before the appellee's motion to dismiss for failure to prosecute. The trial …
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PER CURIAM.
Gelb and Spatz appeal a final order dismissing their action for failure to prosecute. We reverse.
We are faced again with an interpretation of Florida Rule of Civil Procedure 1.420(e),1 which, for some reason, both counsel and trial judges appear to have trouble understanding. The interpretation is relatively simple. If sufficient record activity occurs during the one-year period preceding the motion to dismiss for failure to prosecute, then the motion should be denied. Collado v. C & C Cattle Co., 415 So. 2d 901 (Fla. 3d DCA 1982); Florida East Coast Railway v. Russell, 398 So. 2d 949 (Fla. 4th DCA), review denied, 411 So. 2d 381 (Fla.1981); Biscayne Construction Co. v. Metropolitan Dade County, 388 So. 2d 329 (Fla. 3d DCA 1980).
Here plaintiff-appellant’s notice of hearing on defendant’s pending motions was filed only four days before the defendant’s motion to dismiss for failure to prosecute. Since a notice of hearing is sufficient record activity to preclude dismissal, Greenwell v. Cuiffo, 415 So. 2d 901 (Fla. 3d DCA 1982); Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976); see generally, Nelson v. Stonewall Insurance Co., 440 So. 2d 664, 665 (Fla. 1st DCA 1983) (reviewing a number of cases regarding sufficiency of record activity), the motion to dismiss in this case should have been denied.
Reversed and remanded.
. 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 of 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 of 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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Miami Beach Awning Co. v. Heart OF THE City, Inc., 565 So. 2d 739 (Fla. 3d DCA 1990)…ck of prosecution under Florida Rule of Civil Procedure 1.420(e) on the ground that the court’s order setting the cause for a status conference was, almost by definition, reasonably calculated to advance the cause toward resolution. Gelb v. Miranda, 456 So. 2d 548 (Fla. 3d DCA 1984); Strader v. Morrill, 360 So. 2d 1137 (Fla. 1st DCA 1978); see also Overseas Dev., Inc. v. Amerifirst Federal Sav. & Loan Ass ’n, 433 So. 2d 587 (Fla. 3d DCA 1983); cf. Norflor Constr. Corp. v. City of Gainesville, 512 So. 2d 266 (…
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Lemuel L. Cole v. Dep't OF Corr., 726 So. 2d 854 (Fla. 4th DCA 1999)…trict held that a notice of hearing also serves as sufficient activity to avoid the effect of a motion to dismiss under rule 1.420(e). See also Heinz v. Watson, 615 So. 2d 750, 753 (Fla. 5th DCA), rev. denied, 624 So. 2d 266 (1993); Gelb v. Miranda, 456 So. 2d 548, 549 (Fla. 3rd DCA 1984). In this case, appellant sent a letter to the judge requesting a hearing on the pending motions within one year prior to the filing of the motion to dismiss. This request constituted sufficient record activity, and as such,…
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Wilcox v. Morse, 693 So. 2d 91 (Fla. 2d DCA 1997)…eeding v. Yellow Cab Co., Inc., 505 So. 2d 655 (Fla. 2d DCA 1987)(both cases holding that a notice of hearing is sufficient record activity to preclude dismissal based on lack of prosecution). Other districts have held the same. In Gelb v. Miranda, 456 So. 2d 548 (Fla. 3d DCA 1984), the Third District held that a notice of hearing is sufficient record activity to defeat a motion for lack of prosecution. The Fifth District stated that a motion for mediation, standing alone, was not record activity implemented…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983)
- Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976)
- Fla. E. Coast Ry. Co. v. Russell, 398 So. 2d 949 (Fla. 4th DCA 1981)
- Biscayne Constr. Co. v. Metro. Dade Cnty., 388 So. 2d 329 (Fla. 3d DCA 1980)
- Greenwell v. Cuiffo, 415 So. 2d 901 (Fla. 3d DCA 1982)
- Collado v. C & C Cattle Co., Inc., 415 So. 2d 901 (Fla. 3d DCA 1982)