DAVID BELLI AND CAR BAZAAR IMPORTS, INC., APPELLANTS,
v.
PORSCHE-AUDI OF BROWARD, INC., A FLORIDA CORPORATION, VOLKSWAGEN OF AMERICA, INC., A GEORGIA CORPORATION, AND CABRIOLET PORSCHE, A FLORIDA CORPORATION, APPELLEES
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Appellants challenged dismissals of two defendants for failure to prosecute under Florida Rule 1.420(e). The court held that Rule 1.420(e) applies to actions, not individual parties, and that any record activity in the case directed toward disposition prevents dismissal of all defendants, even if no activity involved those specific defendants.
Rule 1.420(e) speaks to dismissal of actions, not parties. Where jurisdiction has been obtained over all defendants and there is any record activity directed toward disposition of the case, no defendant may be dismissed for failure to prosecute, even if that defendant was not involved in the record activity.
[1] Rule 1.420(e), Florida Rules of Civil Procedure, requires dismissal of an entire action for lack of prosecution when no record activity has occurred for one year, not jus…
[2] Record activity directed toward the disposition of a case, even if minimal, can prevent dismissal under Rule 1.420(e) for failure to prosecute.
Previewing 2 of 4 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“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.”
The plain language of Rule 1.420(e) that the court relied upon to establish that the rule addresses dismissal of actions, not parties.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiffs filed suit against three defendants. In the year preceding motions to dismiss, there was no record activity directed toward two of the defe…
The full statement of facts, procedural history, and disposition for this case are member content.
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WEBSTER, PETER D., Associate Judge.
Appellants, plaintiffs in the trial court, appeal final orders dismissing two of the three defendants pursuant to Rule 1.420(e), Florida Rules of Civil Procedure, for failure to prosecute. It is undisputed that, in the year preceding filing of the motions to dismiss, there was no record activity directed toward either of the defendants which was dismissed. It is likewise undisputed that during that year there was some record activity involving plaintiffs and the third defendant. Both orders recite that the dismissal is “pursuant to Sandini v. Florida East Coast Properties, Inc. and Shelby Mutual Insurance Company, 454 So. 2d 578 (1984) [sic].”
The record activity between plaintiffs and the third defendant was minimal. However, it was not a mere passive effort but, rather, was directed toward disposition of the case. See Philips v. Marshall Berwick Chevrolet, Inc., 467 So. 2d 1068 (Fla. 4th DCA 1985). Thus, the question squarely presented for our resolution is whether Rule 1.420(e) speaks to actions or to parties; or, stated differently, whether Rule 1.420(e) permits dismissal of some, but not all, of the defendants when there is no record activity involving those defendants, but there is record activity between plaintiff and other defendants.
Rule 1.420(e) is written in clear and unambiguous language:
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.... (Emphasis added.)
Numerous courts have held that “Rule 1.420(e) speaks of the dismissal of actions, not parties, for nonprosecution.... [P]laintiff’s obligation is only to show progress in the case, not progress between himself and each defendant.” Smith v. St. George Island Gulf Beaches, Inc., 343 So. 2d 847, 849 (Fla. 1st DCA 1976). See also Magers v. Walker’s Cay Air Terminal, Inc., 451 So. 2d 867 (Fla. 4th DCA 1983); Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA 1982).
Sandini v. Florida East Coast Properties, Inc., 454 So. 2d 578 (Fla. 4th DCA 1984), relied upon by the trial court and by appellees, involved a recognized exception to the general principal that Rule 1.420(e) authorizes dismissal only of actions; and only when there has been no record activity at all directed toward disposition of the case. In Sandini, this Court upheld dismissal of a party pursuant to Rule 1.420(e) “because jurisdiction was not obtained over all of the parties,” distinguishing the line of cases cited above, including Magers v. Walker’s Cay Air Terminal, Inc., 451 So. 2d 867 (Fla. 4th DCA 1983), for that reason (454 So. 2d at 580). Both Smith v. St. George Island Gulf Beaches, Inc., 343 So. 2d 847 (Fla. 1st DCA 1976), and Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA 1982), acknowledge an exception when jurisdiction has never been obtained over the party moving to dismiss.
In this case, it is unnecessary to address whether Sandini was correctly decided or whether the exception to the general principal that Rule 1.420(e) applies to actions, rather than to parties, is consistent with the plain language of the Rule. Here, it is conceded that the court had jurisdiction over all defendants, including the two which were dismissed. Therefore, the general principal, rather than the exception, clearly applies.
Because there was some record activity between plaintiffs and one defendant directed toward disposition of the case during the year preceding filing of the motions to dismiss, it was error to dismiss appel-lees, pursuant to Rule 1.420(e), for failure to prosecute. Accordingly, we must reverse and remand with directions that the trial court vacate its orders dismissing appellees.
REVERSED and REMANDED, with directions.
HERSEY, C.J., and WALDEN, J., concur.
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Utset v. Campos, 548 So. 2d 834 (Fla. 3d DCA 1989)…istrict itself did not follow such an “exception” in Mueller v. North Broward Hospital District, 403 So. 2d 581 (Fla. 4th DCA 1981), and has questioned the validity of the Crouse-Hinds and Sandini decisions in Belli v. Porsche-Audi of Broward, Inc., 503 So. 2d 441, 442 (Fla. 4th DCA 1987). We agree entirely with Mueller and certify our conflict with Crouse-Hinds and Sandi-ni. Beyond this, we think there is no legal basis in any event for interpreting Fla.R. Civ.P. 1.420(e) as authorizing the dismissal of an…1 / 2
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Q.I.P. Corp. v. Berger, 547 So. 2d 1286 (Fla. 4th DCA 1989)…year prior to the appellee’s motion to dismiss was legally sufficient affirmative activity of record to preclude a dismissal for failure to prosecute under rule 1.420(e), Florida Rules of Civil Procedure. See Belli v. Porsche-Audi of Broward, Inc., 503 So. 2d 441 (Fla. 4th DCA 1987); Philips v. Marshall Berwick Chevrolet, Inc., 467 So. 2d 1068 (Fla. 4th DCA 1985); Santa v. Thermo-Air Service, Inc., 506 So. 2d 1170 (Fla. 3d DCA 1987); Liuzzo v. Crapo, 504 So. 2d 480 (Fla. 1st DCA 1987); Orange Electric Co. v.…
Authorities Cited
- Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA 1982)
- Tyson v. State, 467 So. 2d 1068 (Fla. 4th DCA 1985)
- Smith v. ST. George Island Gulf Beaches, Inc., 343 So. 2d 847 (Fla. 1st DCA 1976)
- Columbus Bridges v. Kitchen, 451 So. 2d 867 (Fla. 2d DCA 1983)
- Magers v. Walker's CAY AIR Terminal, Inc., 451 So. 2d 867 (Fla. 4th DCA 1983)
- Sandini v. Fla. E. Coast Props. Inc., 454 So. 2d 578 (Fla. 4th DCA 1984)