BALBOA INSURANCE COMPANY, APPELLANT,
v.
SHORES OF MADEIRA, INC., A FLORIDA CORPORATION, MICHAEL B. REEVES, PIONEER NATIONAL TITLE INSURANCE COMPANY, JOE NANGLE AND RUTH NANGLE, APPELLEES
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Balboa Insurance Company appealed the dismissal of its lawsuit for lack of prosecution. The court reversed, holding that once a proper notice of trial is filed, the duty to set a case for trial rests solely with the court, not the litigant.
The court held that once a proper notice of trial has been filed, the duty to set the cause for trial rests with the court, not the litigant. Therefore, Balboa had no duty to take further affirmative action to prevent dismissal for lack of prosecution, and the trial court erred in dismissing the case.
[1] Once a proper notice of trial has been filed, the duty is on the court to set the cause for trial, and the plaintiff has no further duty to take affirmative action to pre…
[2] A trial court errs in dismissing a cause for lack of prosecution when the plaintiff has filed a motion for trial and the court has failed to set the cause for trial.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Once a proper notice of trial has been filed, the duty is on the court to set the cause for trial. Thus, Balboa had no duty to take any further affirmative action in order to prevent its cause from being dismissed for lack of prosecution.”
Establishes the core legal principle that scheduling duty rests with the court, not the litigant, after notice of trial is filed.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBalboa Insurance Company became assignee of rights from Palmetto Pump and Irrigation Company in a 1978 lawsuit involving a mechanic's lien and payment…
The full statement of facts, procedural history, and disposition for this case are member content.
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SCHEB, Judge.
Appellant Balboa Insurance Company seeks review of a final order dismissing its cause for lack of prosecution.
This litigation commenced in 1978 when Palmetto Pump and Irrigation Company, Inc., filed suit against several defendants, including Balboa, seeking foreclosure of a mechanic’s lien, damages, and other relief. One of the defendants was principal and Balboa was surety on a labor and material payment bond delivered in connection with furnishing plumbing materials and supplies for the Shores of Madeira Condominium. Balboa settled Palmetto Pump’s claim and became assignee of its rights, which it sought to enforce against appellees.
On September 14, 1982, Balboa filed a motion for nonjury trial. Thereafter, between September 16 and 23, three of the appellees moved to dismiss for lack of prosecution. The trial court, however, denied the motions on November 17, 1982.
No further record activity occurred and on November 18, 1983, all appellees moved to dismiss Balboa’s cause of action for lack of prosecution. In response Balboa filed an affidavit confirming that it had filed a motion for nonjury trial in September 1982, when the cause was at issue, and that, despite its motion, the trial court had failed to set the cause for trial. Notwithstanding, on December 21, 1983, the trial court granted appellees’ motions and dismissed the cause for lack of prosecution. This timely appeal by Balboa ensued.
Once a proper notice of trial has been filed, the duty is on the court to set the cause for trial. Thus, Balboa had no duty to take any further affirmative action in order to prevent its cause from being dismissed for lack of prosecution. Mikos v. Sarasota Cattle Co., 453 So. 2d 402 (Fla.1984); Yankee Construction Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA 1983).
Appellees contend that the trial court’s order should be sustained because the custom in the Sixth Judicial Circuit requires that when a cause is submitted for trial, a proposed order setting the case for trial is to be furnished to the judge. We find no merit for this contention, because the duty of scheduling is clearly on the court.
Finally, we note that the record does not reflect that, after filing its motion for trial, appellant Balboa subsequently requested a continuance. This distinguishes the case now before us from the recent opinion of the Third District in Straubel v. Gobayra, 444 So. 2d 1022 (Fla. 3d DCA 1984), and our decision in Bogart v. F.B. Condominiums, Inc., 438 So. 2d 856 (Fla. 2d DCA 1983), petition for review denied, 449 So. 2d 264 (Fla.1984).
The trial court is directed to reinstate appellant’s cause and set the same for non-jury trial at its earliest convenience.
GRIMES, A.C.J., and SCHOONOVER, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Gen. Guar. Ins. Co. v. Bolivar, 460 So. 2d 1011 (Fla. 2d DCA 1984)…r trial.” We hold that the rule requires the trial court to set a cause for trial once notice is given if, in fact, it is ready for trial. 431 So. 2d 260, 261 (Fla. 2d DCA 1983) (emphasis added). See Balboa Insurance Co. v. Shores of Madiera, Inc., 457 So. 2d 596 (Fla. 2d DCA 1984). Thus, notwithstanding the Mikos holding, we conclude that upon receiving a notice for trial, the trial judge may review the case file and if he finds that the case is not at issue he is not required to set the case for trial and…
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Reyes v. Reeves Se. Corp., 895 So. 2d 1274 (Fla. 2d DCA 2005)…s duty to set the cause for trial. Failure to do so precludes dismissal for failure to prosecute despite the lack of record activity. Young v. Mobile Dental Health, Inc., 730 So. 2d 766 (Fla. 2d DCA 1999); Balboa Ins. Co. v. Shores of Madeira, Inc., 457 So. 2d 596 (Fla. 2d DCA 1984); Yankee Constr. Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA [*1275] 1983). Because there was no record activity in Reyes’ case after he filed his notice for trial, the trial court was barred from dismissing the actio…
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Aleida Rodriguez and Pedro Rodriguez v. Gonzalez Moving & Storage Co., 595 So. 2d 275 (Fla. 3d DCA 1992)…e pursuant to Florida Rule of Civil Procedure 1.420(e). We hold in accordance with the general rule that, once proper notice of trial has been filed, the court has the duty to set the cause for trial. Balboa Insurance Co. v. Shores of Madeira, Inc., 457 So. 2d 596 (Fla. 2d DCA 1984). See also Miami Nat’l Bank v. Greenfield, 488 So. 2d 559, 562 (Fla. 3d DCA) (court has duty to set cause [*276] noticed by plaintiff for trial; failure to do so precludes dismissal for failure to prosecute despite lack of record a…
Authorities Cited
- Mikos v. Sarasota Cattle Co. & Charles E. Early, 453 So. 2d 402 (Fla. 1984)
- Bogart v. F.B. Condos., Inc., 438 So. 2d 856 (Fla. 2d DCA 1983)
- Yankee Constr. Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d DCA 1983)
- Saturnino Gonzalo Jorge v. Jorge, 444 So. 2d 1022 (Fla. 3d DCA 1984)
- Straubel v. Gobayra, 444 So. 2d 1022 (Fla. 3d DCA 1984)