GEORGE BERENYI, ET AL., APPELLANTS,
v.
HALIFAX HOSPITAL MEDICAL CENTER, ET AL., APPELLEES
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Appellants challenged dismissal of their action for lack of prosecution under Florida Rule 1.420(e). The court affirmed the dismissals, holding that an order permitting withdrawal of counsel and staying proceedings for 45 days did not toll the one-year inactivity period, and that the order itself did not constitute sufficient record activity to preclude dismissal.
The court held that the withdrawal order did not toll the one-year period, that the order did not constitute the type of active measure intended to hasten the suit to judgment, and that dismissal was appropriate after the stay order expired and one year had elapsed without further record activity.
[1] An order granting a motion for an attorney to withdraw and providing a period for the plaintiff to obtain new counsel does not toll the one-year period for dismissal for…
[2] A trial court order that merely provides for the substitution of counsel does not constitute sufficient record activity to preclude dismissal for failure to prosecute.
Previewing 2 of 5 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“The purpose of the order was to protect the plaintiffs while they attempted to secure other counsel, but they could have proceeded the next day, either with new counsel or pro se, to prosecute their action.”
Distinguishes the case from Rudolph and explains that plaintiffs had control over progress of the case
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Join FLexlaw to unlock all legal intelligenceThe trial court granted a motion for leave to withdraw by plaintiffs' attorney and stayed the matter for 45 days to allow plaintiffs to obtain new cou…
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ORFINGER, Judge.
In these consolidated appeals, appellants contend that the trial court erred in enter ing the various orders dismissing the action against the defendants for lack of prosecution.1 We affirm.
The only record activity which occurred during the one year period prior to the filing of the various motions to dismiss was an order permitting the plaintiffs attorney to withdraw, the pertinent part of which reads:
ORDERED AND ADJUDGED that the Motion for Leave to Withdraw be and the same is hereby granted. The Plaintiffs are granted a period of 45 days from the date of this Order within which to obtain additional counsel and this matter is stayed for that period of time.
If there is no appearance by counsel on behalf of the Plaintiffs within the 45 day period measured from the date of this Order any future correspondence and pleadings shall be directed to the Plaintiffs whose address is 9100 Meadow Creek Drive, Lake Vista Village, Box 145, Orlando, Fl. 32821.
If, as appellant contends, the effect of this order was to extend the one year period referred to in Rule 1.420(e) by an additional 45 days, the motions to dismiss for lack of prosecution were premature. However, we cannot agree that the order tolled the one year period.
Appellants rely on Rudolph v. Chase, 468 So. 2d 494 (Fla. 5th DCA), pet. for rev. denied, American Home Assur. Co. v. Rudolph, 479 So. 2d 117 (Fla.1985) to support their position, but that case is completely distinguishable from this one. In Rudolph, the trial court abated the action and removed it from the active docket. Under those circumstances, neither party could proceed without a court order reinstating the cause. Sub judice, the order prevented only the defendant from proceeding during the 45 day period. The purpose of the order was to protect the plaintiffs while they attempted to secure other counsel, but they could have proceeded the next day, either with new counsel or pro se, to prosecute their action. No order of court was necessary or required. The plaintiffs should not be permitted to extend the one year period when the progress of the case was completely within their control. They had approximately seven months after the 45 day period expired within which to proceed, during which time there was no record activity.
Appellants next contend that the order itself constituted sufficient record activity to preclude dismissal. Rule 1.420(e) requires “some active measure ... intended and calculated to hasten the suit to judgment” to preclude dismissal for failure to prosecute. Gulf Appliance Distributors, Inc. v. Long, 53 So. 2d 706 (Fla.1951). This order did nothing more than to provide for the substitution of counsel, and as such, does not constitute the type of record activity designed to progress the suit to judgment. Boeing Company v. Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981), pet. rev. denied, 412 So. 2d 468 (Fla.1982). As such, it is not the type of record activity which will preclude dismissal.
Lastly, appellant contends that the language of Rule 1.420(e) itself, viz: “unless a stipulation staying the action is approved by the court or a stay order has been filed ...” precludes dismissal because here, a stay order was entered. Certainly dismissal is improper while the stay order is in effect. See e.g. Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA), dismissed, 419 So. 2d 1199 (Fla.1982). But where the stay order has expired, as it had here, dismissal is appropriate after one year has elapsed without record activity.
AFFIRMED.
DAUKSCH and COBB, JJ., concur. . Florida Rule of Civil Procedure 1.420(e) provides:
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 ... unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.
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Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990)…leming, 508 So. 2d 718 (Fla.1987). . Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983); Boeing Co. v. Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981), review denied, 412 So. 2d 468 (Fla.1982). . Berenyi v. Halifax Hosp. Medical Center, 498 So. 2d 655 (Fla. 5th DCA 1986) (order allowing attorney to withdraw). Smith v. DeLoach, 556 So. 2d 786 (Fla. 2d DCA 1990). . Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla.1972) (interrogatories); Q.I.P. Corp. v. Berger, 547 So. 2d 1286 (Fla. 4th DCA 198…
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Togo's Eatery OF Fla., Inc. v. Frohlich, 526 So. 2d 999 (Fla. 1st DCA 1988)…t analogous to those which appear in the instant case, the Fifth District rejected the plaintiff’s argument that the one-year period should be extended by the time during which the proceedings were stayed. Berenyi v. Halifax Hospital Medical Center, 498 So. 2d 655 (Fla. 5th DCA 1986). In Berenyi, the court granted a 45-day stay to allow plaintiffs to obtain additional counsel. The court held that since the stay served only to prevent the defendant from proceeding during the 45-day period, plaintiffs should no…
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Modellista de Europa (Corp.) v. Redpath Inv. Corp., 714 So. 2d 1098 (Fla. 4th DCA 1998)…case did not so provide. It is true that appellant could not proceed without counsel, but nonetheless appellant controlled the progress of the case and could have obtained counsel and proceeded the following day. Berenyi v. Halifax Hosp. Med. Ctr., 498 So. 2d 655 (Fla. 5th DCA 1986). Thus, while we do not agree there was the functional equivalent of a stay in this case, even had there been a stay, when a plaintiff has complete control over the progress of the case while a stay is in effect, the one year peri…1 / 2
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA 1982)
- Babb v. State, 397 So. 2d 399 (Fla. 5th DCA 1981)
- The Boeing Co. v. Jessee David Merchant and Flora Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981)
- Dillard v. Fireman's Fund Ins. Co., 468 So. 2d 494 (Fla. 5th DCA 1985)
- Rudolph v. Chase, 468 So. 2d 494 (Fla. 5th DCA 1985)