PHIL EUGENE GROOMS, APPELLANT,
v.
JOSE M. GARCIA; LABRADA H. GARCIA; PROGRESSIVE AMERICAN INSURANCE COMPANY, A FOREIGN CORPORATION; L.H. SMITH; DAYTON BARS AND COUNTERS, INC., A FOREIGN CORPORATION; AMERICAN STATES INSURANCE COMPANY, A FOREIGN CORPORATION; CHARLES A. GAY; EUGENE MOORE; NORTHWESTERN NATIONAL CASUALTY COMPANY, A FOREIGN CORPORATION; HOWARD WILLIAMSON, AND FLORIDA ROCK INDUSTRY, INC., APPELLEES

Fla. 2d DCA | 1985-12-11
No. 85-389
GRIMES, A.C.J., and FRANK, J., concur.
482 So. 2d 407 Florida District Court of Appeal, Second District (1985) Caution
Cited by 12 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

Phil Eugene Grooms appealed a dismissal for lack of prosecution in a personal injury case arising from a 1981 vehicle collision. The Florida District Court of Appeal reversed, holding that Grooms' notice of hearing filed within the one-year period constituted sufficient record activity to comply with Rule 1.420(e) and avoid dismissal.


Holding

The court held that the notice of hearing satisfied the record activity requirement under Rule 1.420(e). A notice of trial or hearing is sufficient action to avoid dismissal under the rule, as it is calculated to move the case toward conclusion.


Headnotes

[1] A notice of hearing filed within the one-year period constitutes sufficient record activity to avoid dismissal for lack of prosecution under rule 1.420(e), Florida Rules…

[2] A notice of trial or hearing is generally considered sufficient action to prevent the dismissal of a case for lack of prosecution.

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

Key Quotes

“We find that the notice of hearing satisfied such requirement. It was calculated to move the case toward conclusion.”

Establishes that a notice of hearing constitutes sufficient record activity under Rule 1.420(e)

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Grooms filed suit following a four-vehicle collision in Hillsborough County in 1981. On July 22 and August 1, 1983, parties filed motions including su…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
HALL, Judge.

HALL, Judge.

Phil Eugene Grooms, plaintiff in the trial court, appeals from a final order dismissing his cause of action for lack of prosecution. Appellant contends that by filing a notice of hearing within the one-year period he complied with record activity as required by rule 1.420(e), Florida Rules of Civil Procedure.

Appellant’s cause of action arose as a result of a four-vehicle collision in Hillsbor-ough County in 1981.

On July 22, and August 1, 1983, the parties filed various motions, including motions for summary judgment. All pending motions were set for a hearing on September 16, 1983. At the termination of the hearing, the court requested counsel for appellant to prepare a written order covering the court’s rulings. Counsel for appellant failed to prepare such order, and consequently, no written order was ever entered by the court.1 The outcome of this hearing is disputed.

Appellant contends that the court did not rule on all of the motions, while appellees contend that the court disposed of all motions, with the exception of a motion to dismiss the insurance companies pursuant to section 627.7262, Florida Statutes. Ap-pellees contend that the court reserved ruling on this motion pending the decision of a case before the Supreme Court of Florida concerning the constitutionality of the statute and set final disposition of the motion for the pretrial conference.

On July 25, 1984, appellant filed a notice of hearing scheduling all pending motions to be heard on September 18, 1984. The parties all agreed that the one-year period expired on August 1, 1984, one year after the filing of the motions for summary judgment by appellees Garcia and Progressive.2 On August 8, 1984, appellees Garcia and Progressive filed motions to dismiss for failure to prosecute, and shortly thereafter, all other appellees filed similar motions. These motions were also set for the hearing scheduled for September 18, 1984. This hearing was held on September 18, 1984, and on January 28, 1985, the court entered an order granting the motions to dismiss for lack of prosecution.

The sole issue for our consideration in this appeal, considering the agreed upon time period, is whether the notice of hearing filed by appellees on July 25, 1984, is record activity as required by rule 1.420(e), Florida Rules of Civil Procedure.

We find that the notice of hearing satisfied such requirement. It was calculated to move the case toward conclusion. The courts have consistently held that a notice of trial or hearing is sufficient action to avoid the effect of a motion to dismiss under rule 1.420(e). Adams Engineering Co. v. Construction Products Corp., 156 So. 2d 497 (Fla.1963); Thomas v. Personal Representative of Estate of DeLoach, 400 So. 2d 204 (Fla. 4th DCA 1981).3

We therefore reverse the trial court’s order dismissing this cause of action and remand for proper disposition on the merits.

GRIMES, A.C.J., and FRANK, J., concur. . Counsel for appellant contended that he became ill shortly after the hearing and then moved his offices to Miami. Later, when he realized that no order had been entered on the motions, he noticed them for hearing, as he was unsure of the court’s ruling.

. Though we do not necessarily agree that the one-year period expired on August 1, 1984, we base this decision on that date as the parties have so agreed.

. We do not in any way condone the conduct of appellant’s counsel in the prosecution of this case. It certainly appears that he was negligent in failing to reduce the order to writing or at least in failing to notice these motions for hearing for a period of approximately ten months.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Totura & Co., Inc. v. Williams, 754 So. 2d 671 (Fla. 2000)
    …s.... . Compare Wilcox v. Morse, 693 So. 2d 91, 92 (Fla. 2d DCA 1997) (reversing dismissal for lack of prosecution because "a notice of hearing allows a ruling on a motion to be made, advancing the case toward conclusion”) (citing Grooms v. Garcia, 482 So. 2d 407, 408 (Fla. 2d DCA 1985)), with Heinz v. Watson, 615 So. 2d 750, 753 (Fla. 5th DCA 1993) (finding stand alone motion for mediation conference, without follow-up activity during subsequent six months, insufficient record activity “to advance the case…
  • Heinz v. Watson, 615 So. 2d 750 (Fla. 5th DCA 1993)
    …been justified. A notice of hearing is record activity within the meaning of rule 1.420(e). Jones v. Garcia, 536 So. 2d 277 (Fla. 2d DCA 1988); Breeding v. Yellow Cab Co., Inc. of St. Petersburg, 505 So. 2d 655 (Fla. 2d DCA 1987); Grooms v. Garcia, 482 So. 2d 407 (Fla. 2d DCA 1985). Second, even though the trial court found that appellant’s motion for mediation conference was not filed in bad faith, it is apparent from the record that his attorney had no intention of pursuing mediation as a possible alterna…
  • Gant v. Tallahassee Mem'l Reg'l Med. Ctr., 490 So. 2d 1020 (Fla. 1st DCA 1986)
    …“more than a mere passive effort, an affirmative act directed toward disposition of the case,” Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979); activity “calculated to move the case toward conclusion,” Grooms v. Garcia, et al., 482 So. 2d 407 (Fla. 2d DCA 1985); “reasonably calculated to advance the case toward resolution,” Overseas Development, supra; and which “substantially furthers the prosecution of the case.” Nelson, supra. None of these definitions indicate that such activity mus…

Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw