CALVIN T. WEITZEL, APPELLANT,
v.
ROBERT A. HARGROVE, APPELLEE
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Defendant Weitzel appealed a negligence judgment from an automobile accident case. The court reversed and remanded, holding that the trial court erred in denying defendant's motion to dismiss for lack of prosecution where no record activity occurred for over one year and no good cause was shown to keep the case pending.
The trial court erred in denying the motion to dismiss for lack of prosecution. Non-record activity consisting of informal contact between counsel and cancellation of a pending motion does not constitute good cause to keep an action pending and therefore does not satisfy the plaintiff's burden of establishing a compelling reason to avoid dismissal under Fla.R.Civ.P. 1.420(e).
[1] A trial court must dismiss an action for lack of prosecution under Fla.R.Civ.P. …
[2] Non-record communication and agreements between counsel to cancel hearings do not constitute good cause to excuse a lack of record activity for purposes of Fla.R.Civ.P. …
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Join FLexlaw to unlock all legal intelligence“Under Fla.R.Civ.P. 1.420(e), the trial court was required to dismiss this action for lack of prosecution unless (a) a showing of good cause was made as why the action should remain pending, or (b) a court order or court-approved stipulation staying the action had previously been entered in the cause.”
Establishes the mandatory dismissal standard under the rule unless good cause or a court order/stipulation exists
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Join FLexlaw to unlock all legal intelligenceAn automobile accident negligence action was filed by Hargrove against Weitzel. There was no record activity for over one year before defendant filed …
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PER CURIAM.
This is an appeal by the defendant Calvin T. Weitzel from a final judgment entered upon an adverse jury verdict in a negligence action arising out of an automobile accident; the plaintiff Robert A. Hargrove cross appeals the denial of his motion for a directed verdict on the defendant’s seat belt defense. We reverse on the main appeal upon a holding that the trial court erred in denying the defendant’s motion to dismiss this action for lack of prosecution under Fla.R.Civ.P. 1.420(e); this reversal necessarily moots the cross appeal. We reach this result based on the following briefly stated legal analysis.
First, it is undisputed there was no record activity for a period of over one year prior to the date the defendant filed his motion to dismiss for lack of prosecution. Under Fla.R.Civ.P. 1.420(e), the trial court was required to dismiss this action for lack of prosecution unless (a) a showing of good cause was made as why the action should remain pending, or (b) a court order or court-approved stipulation staying the action had previously been entered in the cause. Without dispute, no such court order or stipulation was entered in this case; the only issue in controversy is whether good cause was shown why this action should remain pending. Industrial Trucks of Fla., Inc. v. Gonzalez, 351 So. 2d 744, 746 (Fla. 3d DCA 1977); Metropolitan Transit Authority v. Porter, 328 So. 2d 573 (Fla. 3d DCA 1976); Karkeet v. Snyder, 275 So. 2d 302 (Fla. 3d DCA 1973).
Second, the sole showing of good cause why this action should remain pending, notwithstanding the lack of record activity of over one year, was that counsel for both parties had been in contact with one another during the aforesaid one-year period and agreed to cancel a previously noticed hearing on the defendant’s motion to strike certain allegations in the complaint. Contrary to the plaintiffs contention, we conclude that this non-record activity between counsel did not excuse the lack of record activity below and in no way advanced the cause. Indeed, quite the opposite occurred; counsel mutually agreed to cancel a hearing on a pending motion which presumably would have advanced the cause had the court ruled upon the motion. This being so, this non-record activity does not satisfy the plaintiffs heavy burden of establishing a compelling reason why this action should not have been dismissed for lack of prosecution. Togo’s Eatery of Fla., Inc. v. Frohlich, 526 So. 2d 999, 1002 (Fla. 1st DCA 1988); Norflor Const. Corp. v. City of Gainesville, 512 So. 2d 266, 267 (Fla. 1st DCA 1987), rev. denied, 520 So. 2d 585 (Fla.1988); Tosar v. Sladek, 393 So. 2d 61, 63 (Fla. 3d DCA 1981); American Eastern Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980).
The final judgment under review is therefore reversed and the cause is remanded to the trial court with directions to dismiss the instant action for lack of prosecution under Fla.R.Civ.P. 1.420(e).
Reversed and remanded.
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Edgecumbe v. Am. Gen. Corp., 613 So. 2d 123 (Fla. 1st DCA 1993)…en lawyers, settlement negotiations, conferences with potential witnesses, exchange of proposed exhibits, verbal or letter requests for discovery, if that is all, will not suffice to preclude dismissal under the amended rule.”); Weitzel v. Hargrove, 543 So. 2d 392 (Fla. 3d DCA 1989) (dismissal for lack of prosecution was warranted where the non-record activity involved contact between counsel for both parties and an agreement to cancel a previously noticed hearing on the defendant’s motion to strike certain a…
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Sewell Masonry Co. v. DCC Constr., Inc., 862 So. 2d 893 (Fla. 5th DCA 2003)…ficient record activity to preclude a dismissal for lack of prosecution. As DCC points out, however, it seems self-evident that cancellation of a deposition is not an affirmative act designed to move the case toward disposition. Weitzel v. Hargrove, 543 So. 2d 392 (Fla. 3d DCA 1989), holds that cancellation of a hearing on a pending motion in no way advances the cause and does not establish a valid reason why the case should not have been dismissed for lack of prosecution. Sewell argues that its response to…
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Golden Triad Carriers, Inc. v. Paco Am. Corp., 553 So. 2d 247 (Fla. 3d DCA 1989)…urt erred in denying Golden’s motion to dismiss for lack of prosecution. Because Golden’s motion to dismiss should have been granted, the trial court’s subsequent determination of liability against Golden must also be reversed.4 Weitzel v. Hargrove, 543 So. 2d 392 (Fla. 3d DCA 1989) (reversing final judgment on the issue of liability based on trial court’s error in denying defendant’s motion to dismiss for failure to prosecute). With respect to the issue of Nelson’s liability, we hold that Nelson’s liability…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Am. E. Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980)
- Norflor Constr. Corp. v. City OF Gainesville & CH2M Hill Se., Inc., 512 So. 2d 266 (Fla. 1st DCA 1987)
- State v. Brannon, 351 So. 2d 744 (Fla. 3d DCA 1977)
- Aurora Pacheco and Ubaldo Pacheco v. Ramos, 351 So. 2d 744 (Fla. 3d DCA 1977)
- Moore v. Moore, 393 So. 2d 61 (Fla. 3d DCA 1981)
- Togo's Eatery OF Fla., Inc. v. Frohlich, 526 So. 2d 999 (Fla. 1st DCA 1988)
- Metro. Transit Auth. v. Porter, 328 So. 2d 573 (Fla. 3d DCA 1976)
- Rollo Karkeet v. Snyder, 275 So. 2d 302 (Fla. 3d DCA 1973)