MANUEL ANTONIO GOVAYRA, PETITIONER,
v.
DONALD S. STRAUBEL, RESPONDENT

Fla. | 1985-03-28
No. 64988
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.
466 So. 2d 1065 Florida Supreme Court (1985) Caution
Cited by 21 cases

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.

Synopsis

The Florida Supreme Court reviewed a district court's reversal of a trial court's dismissal for failure to prosecute. The Supreme Court held that the trial court correctly dismissed the case because the plaintiff failed to show good cause in writing for the extensive delay, despite clear notice from the court.


Holding

No, the trial court did not err. The plaintiff's failure to file a written showing of good cause, despite clear notice from the court, justified the dismissal for want of prosecution.


Headnotes

[1] A trial court may dismiss an action for want of prosecution when no record activity has occurred for a period of one year, provided reasonable notice is given to the part…

[2] A plaintiff who requests a continuance of a trial date due to lack of readiness bears the burden of renoticing the cause for trial.

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Key Quotes

“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 ... after reasonable notice to the parties, unless ... a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending.”

This quote from Rule 1.420(e) establishes the mandatory nature of dismissal for lack of prosecution and the requirement to show good cause in writing.

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Facts & Procedural History

After a continuance was granted at the plaintiff's request, there was a 28-month period of no activity in the case. The trial court issued a notice of…

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Opinion of the Court
EHRLICH, Justice.

EHRLICH, Justice.

We have for review a decision of the Third District Court of Appeal, Straubel v. Govayra, 444 So. 2d 1022 (Fla. 3d DCA 1984), which reversed the trial court’s order dismissing the complaint for failure to prosecute pursuant to Rule 1.420(e) of the Florida Rules of Civil Procedure. The decision conflicts with Bogart v. F.B. Condominiums, 438 So. 2d 856 (Fla. 2d DCA 1983) and with Executive Commercial Services v. South Florida Parts & Supply, 361 So. 2d 737 (Fla. 4th DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. Because we find the trial judge correctly entered the order of dismissal, we quash the decision of the district court of appeal.

After the completion of discovery and a full exchange of pleadings the respondent, who was the plaintiff, noticed the case for trial on May 29, 1980. On June 20, 1980, the court entered an Order Serving Cause for Trial on the three week period beginning September 29, 1980. On September 18, 1980, the parties filed a stipulation for continuance of trial which alleged that respondent would not be prepared on the date trial was scheduled for. On September 25, the trial judge entered an order continuing the case which provided: “This cause shall be reset for trial upon further proper notice therefor.”

Thereafter followed a twenty-eight month period in which no record activity on the part of the respondent occurred. The only activity was the withdrawal and substitution of counsel for petitioner in March of 1982. On February 16, 1983, the trial court filed a Notice Preceeding Order of Dismissal. The order stated: “That the cause will stand dismissed upon the Court’s own motion on Thursday, March 3, 1983, at 9:30 a.m. after hearing unless a party shows good cause in writing why the action should remain pending at least five (5) days before said hearing.” No responsive pleading was filed. After hearing arguments on March 3, 1983, the trial court entered its Orders of Dismissal for want of prosecution.

On appeal, the respondent argued that he had been misled into inaction by the language of the order continuing the case. The Third District agreed with respondent’s contention that the order was susceptible to the construction “that the court had undertaken the responsibility of renot-icing the case for trial and that further action on the [respondent’s] part was unnecessary.” 444 So. 2d at 1024. The Third District found that good cause why the action should remain pending had been shown and thus reversed the order of dismissal.

The Third District correctly pointed out “that the filing of a proper notice of trial will avoid a dismissal for lack of prosecution when an order of trial is not forthcoming,” but that “a notice of trial is no longer viable after a trial date has been set and subsequently continued, where, as here, the continuance is based on the plaintiff’s lack of readiness for trial.” 444 So. 2d at 1023. Mikos v. Sarasota Cattle Company, 453 So. 2d 402 (Fla.1984). The Third District agreed that because respondent had requested a continuance after giving notice of trial, he had the burden of renoticing the cause. The court found, however, that respondent had shown good cause for his failure to proceed and thus reversed.

The Third District, however, ignored the mandatory language of Rule 1.420(e) of the Florida Rules of Civil Procedure with regard to Dismissal of Actions. That rule states:

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 ... after reasonable notice to the parties, unless ... a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Fla.R.Civ.P. 1.420(e). (Emphasis added.)

In the present case, after a twenty-eight month delay in record activity, the trial court properly sent Notice Preceeding Order of Dismissal which clearly stated that the case would be dismissed unless good cause in writing was shown by a party at least five days before the hearing. While the Notice gave the parties reasonable time to respond and prepare pleadings, the respondent failed to file any writings with respect to good cause. This failure to file any pleadings is sufficient grounds to justify the trial court’s order of dismissal. Executive Commercial Services v. South Florida Parts & Supply, 361 So. 2d 737, 738 (Fla. 4th DCA 1978).

There is further reason for upholding the order of the trial court. The district court excused plaintiffs inaction because of what the court termed the misleading language of the trial court’s order. We do not believe the order is either misleading or ambiguous. Rather, we think that the language in question is clear and can only mean that notice had to be given by either the plaintiff or defendant, or the court on its own motion, in order to have the ease reset for trial.

The order of the Third District Court of Appeal is quashed.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …trial and then the case is continued because the plaintiff subsequently indicates he is not ready for trial, the original notice of trial will not preclude a dismissal for lack of prosecution after the continuance. Id. See also Govayra v. Straubel, 466 So. 2d 1065, 1066 (Fla.1985). Petitioner, noting this Court’s citation of Visuna in the Mikos decision, argues this situation is the only exception to the rule that a notice for trial bars dismissal for lack of prosecution. In Visuna, plaintiffs noticed the act…
    1 / 2
  • Smith v. Guion T. DeLOACH, 556 So. 2d 786 (Fla. 2d DCA 1990)
    …0(e). The amendment filed in January of 1977 prevents dismissal of a case, even though the face of the record is devoid of activity provided the opposing party can show good cause in writing why the action should remain pending. Govayra v. Straubel, 466 So. 2d 1065, 1066 (Fla.1985); In re Florida Bar, Rules of Civil Procedure, 339 So. 2d 626, 629 (Fla.1976). The appellants in their response to the motion to dismiss allege that a probate proceeding was pending “and they could not ascertain the amount of damage…
  • Heinz v. Watson, 615 So. 2d 750 (Fla. 5th DCA 1993)
    …st five days before the hearing on [*754] the motion to dismiss why the action should remain pending. Appellant's failure to show good cause before the hearing in compliance with rule 1.420(e) warrants a dismissal of the action. Govayra v. Straubel, 466 So. 2d 1065 (Fla.1985); Golden Triad Carriers, Inc. v. Paco American Corp., 553 So. 2d 247 (Fla. 3d DCA 1989); Martinez v. Fuenmayor, 533 So. 2d 935 (Fla. 3d DCA 1988); Hirsch v. Muldowney, 470 So. 2d 766 (Fla. 3d DCA 1985). AFFIRMED. PETERSON and DIAMANTIS,…

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