GENERAL GUARANTY INSURANCE COMPANY, APPELLANT,
v.
LOUISE C. BOLIVAR, APPELLEE
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General Guaranty Insurance Company appeals an involuntary dismissal order for failure to prosecute. The court affirms, holding that a trial court may dismiss a case for lack of prosecution even after receiving a notice for trial if the action was not properly at issue when the notice was filed.
The court affirmed the involuntary dismissal, holding that upon receiving a notice for trial, the trial judge may review the case file and if the case is not at issue, the judge is not required to set the case for trial and an otherwise proper motion for involuntary dismissal should be granted.
[1] A trial court may grant a motion for involuntary dismissal for failure to prosecute when an action is not at issue, even if a party has filed a notice stating the action…
[2] A notice stating an action is at issue and requesting a trial setting is improperly filed if the action is not, in fact, at issue.
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Join FLexlaw to unlock all legal intelligence“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 an otherwise proper motion for involuntary dismissal should be granted”
The court's holding on the standard for when involuntary dismissal may be granted despite a notice for trial
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Join FLexlaw to unlock all legal intelligenceCommercial Roof Decks filed suit in 1973 against Rene Bolivar Construction Co. and General Guaranty. Louise Bolivar was brought into the action in Jan…
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MALONEY, DENNIS P., Associate Judge.
Appellant, General Guaranty Insurance Company, appeals the trial court’s order of an involuntary dismissal for failure to prosecute pursuant to rule 1.420(e), Florida Rules of Civil Procedure. We affirm.
In 1973, Commercial Roof Decks of Tampa, Inc. filed suit against Rene Bolivar Construction Co., Inc. and General Guaranty Insurance Co. (“General Guaranty”). General Guaranty filed its third-party complaint and later a first amended third-party complaint, against several third-party defendants. Louise Bolivar, appellee, was not one of the third-party defendants.
In January 1977 Bolivar was brought into this action by being served General Guaranty’s second amended third-party plaintiff’s complaint. Approximately two weeks later Bolivar filed a motion to dismiss and a motion for more definite statement. These two motions were still pending and Bolivar had not answered the second amended third-party plaintiff’s complaint when, more than six years later, on April 21, 1983, General Guaranty served its notice stating that the third-party action was at issue and requested that the same be set for trial. On April 27, 1983, the court sua sponte entered an order of recusal. Nothing further occurred in the case until May 29, 1984, when Bolivar filed a motion for involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(e). Bolivar’s motion for involuntary dismissal was granted by the court. This appeal followed. General Guaranty argues that Mikos v. Sarasota Cattle Co., 453 So. 2d 402 (Fla.1984), controls. In Mikos, the Florida Supreme Court affirmed this court’s holding that once a plaintiff has given notice that it is ready for trial, the trial court must enter an order setting a trial date and is therefore precluded from dismissing an action for lack of prosecution. There is a critical distinction, however, between Mikos and the case at bar. In Mikos, the action was at issue, both parties had filed notices for trial and, thus, notices for trial were proper. Here, as conceded by General Guaranty, the action was not at issue when the notice for trial was filed and therefore General Guaranty’s notice for trial was improperly filed. This court in Sarasota Cattle Co. v. Mikos recognized this distinction:
Rule 1.440(c) states that, “[i]f the court finds the action ready to be set for trial, it shall enter an order fixing a date for 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 an otherwise proper motion for involuntary dismissal should be granted.
AFFIRMED.
SCHEB, A.C.J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Kubera v. Fisher, 483 So. 2d 836 (Fla. 2d DCA 1986)…, was not continued on the basis of the plaintiffs’ lack of readiness for trial; it was continued for the purpose of accommodating the defendant’s request for further discovery. The defendant’s reliance on General Guaranty Insurance Co. v. Bolivar, 460 So. 2d 1011 (Fla: 2d DCA 1984), is misplaced. In General Guaranty, we found that the case was not “at issue,” or ready for trial, because motions were still pending and an amended third party complaint had not been answered. The notice for trial therefore had b…
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Aleida Alech v. Gen. Ins. Co., 491 So. 2d 337 (Fla. 3d DCA 1986)…the case is not at issue, as here, is a nullity and does not constitute proper record activity sufficient to defeat an otherwise valid motion to dismiss for lack of prosecution under Fla.R. Civ.P. 1.420(e). General Guaranty Insurance Co. v. Bolivar, 460 So. 2d 1011, 1012 (Fla. 2d DCA 1984), distinguishing Mikos v. Sarasota Cattle Co., 453 So. 2d 402 (Fla.1984). Affirmed.…
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Jones v. Volunteers OF Am. N. & Cent. Fla., Inc., 834 So. 2d 280 (Fla. 2d DCA 2002)…case for trial. Young v. Mobile Dental Health, Inc., 730 So. 2d 766 (Fla. 2d DCA 1999). However, a notice for trial will not protect the plaintiff from dismissal if the case is not “at issue” when the notice is filed. Gen. Guar. Ins. Co. v. Bolivar, 460 So. 2d 1011 (Fla. 2d DCA 1984). An action is at issue when the pleading process is completed. Kubera v. Fisher, 483 So. 2d 836 (Fla. 2d DCA 1986). Here, Cullen’s failure to file an answer or other responsive pleading was sufficient to prevent this case from bei…
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
- Mikos v. Sarasota Cattle Co. & Charles E. Early, 453 So. 2d 402 (Fla. 1984)
- Sarasota Cattle Co. & Charles E. Early v. Mikos, 431 So. 2d 260 (Fla. 2d DCA 1983)
- Balboa Ins. Co. v. Shores OF Madeira, Inc., 457 So. 2d 596 (Fla. 2d DCA 1984)