JOSEPH MASON, APPELLANT,
v.
GEORGE BOYUNG, JOHN'S PASS BOOKKEEPING AND SUE LAMONT, APPELLEES

Fla. 2d DCA | 1987-01-07
No. 86-1295
GRIMES, A.C.J., and SCHEB, J., concur.
502 So. 2d 27 Florida District Court of Appeal, Second District (1987) Positive Treatment
Cited by 2 cases

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Synopsis

Mason appealed a trial court's dismissal of his action for failure to prosecute under Florida Rule 1.420(e). The appellate court affirmed, holding that a prematurely filed motion to dismiss constitutes a nullity and does not constitute record activity sufficient to restart the one-year period required before a motion to dismiss for failure to prosecute can be timely filed.


Holding

A prematurely filed motion to dismiss is a nullity and does not constitute record activity. Therefore, Boyung's premature motion did not restart the one-year period, and Lamont's timely motion properly resulted in dismissal of the entire action.


Headnotes

[1] A motion to dismiss for failure to prosecute is timely filed on the first day after the expiration of the one-year period of inactivity.

[2] A prematurely filed motion to dismiss for failure to prosecute is considered a legal nullity.

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Key Quotes

“a prematurely filed motion to dismiss is, in effect, a "nullity."”

Establishes the core holding that premature motions have no legal effect and do not constitute record activity.

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Facts & Procedural History

Mason filed his original complaint on February 17, 1981. The last recorded activity was on February 5, 1985, when defendant Boyung filed answers to in…

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Opinion of the Court
FRANK, Judge.

FRANK, Judge.

Joseph Mason appeals from the trial court’s order granting the appellee’s motion to dismiss pursuant to Rule 1.420(e) of the Florida Rules of Civil Procedure. We affirm.

The original complaint in this action was filed by the plaintiff on February 17, 1981. From that date until February 5, 1986, the record reveals only sparse activity. The last activity of record occurred on February 5, 1985, when one of the codefendants, Boyung, filed his answers to interrogatories propounded by Mason. Exactly one year later, on February 5, 1986, Boyung filed a motion to dismiss for failure to prosecute based upon a lack of record activity during the preceding one year. A motion to dismiss for failure to prosecute was also filed by a codefendant, Lamont, on February 11, 1986. Subsequently, a single order granted each movant’s motion.

Expiration of the one year period prescribed in Rule 1.420(e) of the Florida Rules of Civil Procedure occurred on February 6, 1986; that was the first day upon which a motion to dismiss for failure to prosecute could have been timely filed.

Mason asserts that Boyung’s prematurely filed motion constitutes record activity, sufficient to defeat Lamont’s subsequent but timely motion. In view of our decision in Fleming v. Barnett Bank of East Polk County, 490 So. 2d 126 (Fla.2d DCA 1986), the appellant’s argument is without merit.

In Fleming, a majority of this court held that a prematurely filed motion to dismiss is, in effect, a “nullity.” Id. at 127. We are aware of the conflict between our decision in Fleming and the first district’s decision in Gant v. Tallahassee Memorial Regional Medical Center, 490 So. 2d 1020 (Fla. 1st DCA 1986). We need not be concerned with either the conflict or the pendency of Fleming in the supreme court. Fleming v. Barnett Bank of East Polk County, 490 So. 2d 126 (Fla. 2d DCA 1986), rev. granted, No. 69-023 (Fla. Oct. 22, 1986).

Rule 1.420(e) of the Florida Rules of Civil Procedure provides for the dismissal of the entire action, as opposed to dismissal only as to the moving party in the circumstance where a codefendant timely moves the trial court to dismiss the action pursuant to Rule 1.420(e). Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA 1982). Lamont’s motion operated to achieve total dismissal of the action. The trial court’s order granting the motion to dismiss for failure to prosecute is affirmed.

GRIMES, A.C.J., and SCHEB, J., concur.


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Citator

Cited By

  • Mason v. Boyung, 518 So. 2d 265 (Fla. 1988)
    …BARKETT, Justice. We accepted jurisdiction in order to review the conflicting decisions of Mason v. Boyung, 502 So. 2d 27 (Fla. 2d DCA 1987), and Gant v. Tallahassee Memorial Regional Medical Center, 490 So. 2d 1020 (Fla. 1st DCA 1986), quashed sub nom. Barnett Bank of East Polk County v. Fleming, 508 So. 2d 718 (Fla.1987). The issue to be resolved was whether a premat…

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