INMAN, INC., A FLORIDA CORPORATION, APPELLANT,
v.
MIAMI DADE WATER AND SEWER AUTHORITY AND POST, BUCKLEY, SCHUH & JERNIGAN, INC., A FLORIDA CORPORATION, APPELLEES
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Inman, Inc. appeals an order dismissing its case for lack of prosecution. The court holds that a premature motion to dismiss for lack of prosecution and the order denying it do not constitute record activity sufficient to prevent a subsequent dismissal motion filed after one year of inactivity.
Neither a premature motion to dismiss for lack of prosecution nor an order denying that motion constitutes record activity sufficient to preclude dismissal pursuant to a subsequent motion to dismiss filed after one year of inactivity.
[1] A premature motion to dismiss for lack of prosecution does not constitute record activity sufficient to preclude a subsequent dismissal for lack of prosecution.
[2] An order denying a premature motion to dismiss for lack of prosecution does not constitute record activity sufficient to preclude a subsequent dismissal for lack of prose…
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Join FLexlaw to unlock all legal intelligence“neither a premature motion to dismiss for lack of prosecution nor an order denying that motion constitutes record activity sufficient to preclude the entry of an order dismissing for lack of prosecution pursuant to a second and mature motion to dismiss”
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Join FLexlaw to unlock all legal intelligenceA settlement stipulation between Inman and Florida Power and Light Company was filed on April 26, 1984. The only other record activity before a succes…
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DANIEL S. PEARSON, Judge.
We affirm the order under review upon a holding that neither a premature motion to dismiss for lack of prosecution nor an order denying that motion constitutes record activity sufficient to preclude the entry of an order dismissing for lack of prosecution pursuant to a second and mature motion to dismiss.
On April 26,1984, a stipulation reflecting a nearly-year-old settlement between In-man, Inc., the plaintiff below, and Florida Power and Light Company (a co-defendant of appellee Miami Dade Water and Sewer Authority and quite obviously not a party to this appeal) was filed in the cause below. Assuming, but not deciding, that this stipulation constituted the type of record activity that substantially furthered the prosecution of the plaintiff’s case, it is undisputed that the only other record activity in the cause after the filing of this stipulation and before the filing on May 7, 1985, of the appellee’s successful motion to dismiss, was the filing of a similar but premature motion in November 1984, and the entry of an order denying such motion in January 1985.
In concluding, as we do, that a motion to dismiss filed before the expiration of one year from the last record activity is not itself record activity precluding subsequent dismissal, we agree with the Second District’s like conclusion in Fleming v. Barnett Bank of East Polk County, 490 So. 2d 126 (Fla.2d DCA 1986) (en banc)1 (receding from panel opinion in Johnson v. Mortgage Investors of Washington, 410 So. 2d 541 (Fla.2d DCA 1982)). A motion to dismiss for lack of prosecution is undeniably record activity.
However, because the goal of the motion is to terminate the cause, the motion is the antithesis of activity reasonably calculated, as it must be, “to advance the cause to resolution.” Overseas Development, Inc. v. AmeriFirst Federal Savings and Loan Association, 433 So. 2d 587, 589 (Fla. 3d DCA), pet. for rev. dismissed, 438 So. 2d 833 (Fla.1983).
And, just as a court order designed to spur activity is held not to constitute affirmative record activity advancing the cause, see Nelson v. Stonewall Insurance Company, 440 So. 2d 664 (Fla. 1st DCA 1983); Boeing Co. v. Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981), pet. for rev. denied, 412 So. 2d 468 (Fla.1982), a court order, as here, which rejects the defendant’s request to terminate the prosecution, although concededly not impeding the cause, does absolutely nothing to advance it.
Accordingly, the order dismissing the cause for lack of prosecution is
Affirmed.
. Because, in the present case, the defendant filed a second motion to dismiss after the lapse of one year of inactivity, we need not concern ourselves with the other holding in Fleming that the premature motion, being a nullity, could not be acted upon by the court after one year of inactivity.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Barnett Bank OF E. Polk Cnty. v. Fleming, 508 So. 2d 718 (Fla. 1987)…of prosecution fulfills neither of these objectives. There is no question that a motion to dismiss for lack of prosecution is activity and is in the record. However, as the Third District noted in Inman, Inc. v. Miami Dade Water & Sewer Authority, 489 So. 2d 218, 219 (Fla. 3d DCA 1986), [BJecause the goal of the motion is to terminate the cause, the motion is the antithesis of activity reasonably calculated, as it must be, “to advance the cause to resolution.” (Citation omitted.) And, just as a court' orde…1 / 2
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Martinez v. Joaquin Fuenmayor, M.D., 533 So. 2d 935 (Fla. 3d DCA 1988)…stakenly served as a defendant in this cause. The aforesaid motion and affidavit in no way advanced the cause to resolution and cannot, in our view, preclude a dismissal under the above rule. See, e.g., Inman, Inc. v. Miami Dade Water & Sewer Auth., 489 So. 2d 218 (Fla. 3d DCA 1986); Overseas Dev., Inc. v. AmeriFirst Fed. Sav. & Loan Ass’n, 433 So. 2d 587, 589 (Fla. 3d DCA), pet. for rev. dismissed, 438 So. 2d 833 (Fla. 1983). Second, there was no good cause shown in writing for the lack of record activity in…
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Carter v. Lizardo Cerezo, M.D., 495 So. 2d 202 (Fla. 5th DCA 1986)…ement in Johnson v. Mortgage Investors of Washington [410 So. 2d 541 (Fla. 2d DCA 1982) ] supra, that a prematurely-filed motion to dismiss for lack of prosecution constitutes record activity. In Inman, Inc. v. Miami Dade Water and Sewer Authority, 489 So. 2d 218 (Fla. 3d DCA 1986) the Third District followed Fleming and held that a motion to dismiss filed before the expiration of one year from the last record activity is not itself record activity sufficient to preclude a subsequent dismissal. The First Dis…
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)
- Babb v. State, 397 So. 2d 399 (Fla. 5th DCA 1981)
- Johnson v. Mortg. Invs. OF Wash., 410 So. 2d 541 (Fla. 2d DCA 1982)
- Overseas Dev., Inc. v. Amerifirst Fed. Sav. & Loan Ass'n, 433 So. 2d 587 (Fla. 3d DCA 1983)
- The Boeing Co. v. Jessee David Merchant and Flora Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981)
- Fleming v. Barnett Bank OF E. Polk Cnty., 490 So. 2d 126 (Fla. 2d DCA 1986)