ALEIDA ALECH, APPELLANT,
v.
GENERAL INSURANCE COMPANY, APPELLEE
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The Third District Court of Appeal affirmed the dismissal of plaintiff Alech's insurance action for lack of prosecution, holding that a motion for trial filed while an undisposed-of defense motion to strike remained pending was a nullity and could not constitute proper record activity to prevent dismissal under Florida Rule of Civil Procedure 1.420(e).
A motion for trial filed when the case is not at issue due to an undisposed-of defense motion to strike is a nullity and does not constitute proper record activity sufficient to defeat a valid motion to dismiss for lack of prosecution. The trial court was required to dismiss the action.
[1] A case is not at issue while undisposed-of motions directed to pleadings remain pending.
[2] A notice of or motion for trial filed when a case is not at issue is a nullity and does not constitute proper record activity to defeat a dismissal for lack of prosecutio…
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Join FLexlaw to unlock all legal intelligence“The determinative question is whether a cause is at issue where, with the last responsive pleading required under the rules, there also is simultaneously filed a motion to strike all or part of the pleading to which such responsive pleading is directed... the cause is not at issue while such motions directed to pleadings remain undisposed of.”
Establishes the controlling legal standard that a case is not at issue when defense motions to strike remain pending.
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Join FLexlaw to unlock all legal intelligencePlaintiff Alech filed an action against General Insurance Company. More than one year passed without record activity except for a motion for trial fil…
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PER CURIAM.
The final order dismissing the plaintiff Aleida Alech’s action below for lack of prosecution under Fla.R.Civ.P. 1.420(e) is affirmed. We reach this result based on the following briefly stated legal analysis.
First, there was, without dispute, no record activity for more than one year prior to the filing of the trial court’s sua sponte motion to dismiss for lack of prosecution, other than a motion for trial filed by the plaintiff Aleida Alech on June 1, 1984.
Second, absent this pleading, the trial court was otherwise required to dismiss this action for lack of prosecution under Fla.R.Civ.P. 1.420(e).
Third, at the time the aforesaid motion for trial was filed, there was an undisposed-of defense motion to strike the plaintiff’s punitive damages claim [and paragraphs 25, 27, and 28 of the complaint] contained in the defendant’s answer, and, accordingly, the case was not at issue. See Leeds v. C.C. Chemical Corp., 280 So. 2d 718, 719 (Fla. 3d DCA 1973) (“The determinative question is whether a cause is at issue where, with the last responsive pleading required under the rules, there also is simultaneously filed a motion to strike all or part of the pleading to which such responsive pleading is directed. Upon resolving the arguments of the parties relating thereto, we hold that the cause is not at issue while such motions directed to pleadings remain undisposed of. In holding to the contrary the trial court was incorrect.”).
Fourth, a notice of or motion for trial filed at a time when 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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Nat'l Enters., Inc. v. Foodtech Hialeah, Inc., 777 So. 2d 1191 (Fla. 3d DCA 2001)…re directed to a motion already disposed of by the trial court, are sufficient record activity to prevent a dismissal pursuant to Florida Rule of Civil Procedure 1.420(e). In accordance with our earlier holding in Alech v. General Insurance Company, 491 So. 2d 337 (Fla. 3d DCA 1986), we conclude that they are not and affirm the order under review. This case began on August 15, 1995, when National Enterprises, Inc. (“NEI”) filed a complaint against Foodtech Hialeah, Inc. (“Foodtech”). At the time, NEI was rep…1 / 3
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Fallschase Dev. Corp. v. Jackson A. Sheard & Oxford-America Corp., 655 So. 2d 214 (Fla. 1st DCA 1995)…e for trial was filed while a motion previously filed by appellant to strike affirmative defenses remained outstanding and unruled on. Accordingly, the action was not at issue, and the notice for trial was a nullity. E.g., Alech v. General Ins. Co., 491 So. 2d 337 (Fla. 3d DCA 1986). The second notice for trial was not filed until after the motion to dismiss for lack of prosecution had been filed. Accordingly, it cannot serve to defeat that motion. E.g., Government Employees Ins. Co. v. Wheelus, 382 So. 2d 12…
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Ospina v. Indian Creek Club & Marina Condo. Assoc., 561 So. 2d 463 (Fla. 3d DCA 1990)…PER CURIAM. Affirmed. See Fla.R.Civ.P. 1.420(e); Alech v. General Ins. Co., 491 So. 2d 337 (Fla. 3d DCA 1986); Karcher v. F.W. Schinz & Assocs., Inc., 487 So. 2d 389 (Fla. 1st DCA 1986); F.M.C. Corp. v. Chatman, 368 So. 2d 1307 (Fla. 4th DCA 1979), cert. denied, 379 So. 2d 203 (Fla.1979).…
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)
- Gen. Guar. Ins. Co. v. Bolivar, 460 So. 2d 1011 (Fla. 2d DCA 1984)
- Leeds v. C. C. Chem. Corp., 280 So. 2d 718 (Fla. 3d DCA 1973)