WILLIAM C. DIAMOND, APPELLANT,
v.
PENINSULAR LIFE INSURANCE COMPANY, A NORTH CAROLINA CORPORATION, APPELLEE
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Court reversed the trial court's order striking a Rule 1.540(b) motion to set aside a final summary judgment, holding that Rule 1.420(e) authorizes only dismissal of actions for failure to prosecute, not striking of motions on their merits.
Rule 1.420(e) does not authorize a court to strike a motion to set aside a judgment for failure to prosecute; such motions must be ruled on their merits.
[1] Rule 1.420(e), Florida Rules of Civil Procedure, authorizes dismissal of an action for failure to prosecute but does not authorize striking a motion to set aside a judgme…
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Join FLexlaw to unlock all legal intelligenceAppellant filed a Rule 1.540(b) motion with supporting affidavit seeking to set aside a final summary judgment in favor of Appellee. The trial court s…
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PER CURIAM.
We review by appeal an order that struck Appellant’s rule 1.540(b) motion and supporting affidavit seeking to set aside a final summary judgment for Appellee. The order struck the motion and affidavit on the authority of rule 1.420(e), Florida Rules of Civil Procedure, because no action had been taken by Appellant to have the motion heard for more than sixteen months after it was filed and served. However, rule 1.420(e) authorizes only the dismissal of an action for failure to prosecute; it does not authorize the court to strike a motion to set aside a judgment rather than ruling on its merits. We are sympathetic with the trial court’s concern that Appellant took no action to have his motion to set aside judgment heard for more than sixteen months after it was filed, but we are also aware that Appellee could have requested the court to promptly set that motion for hearing or, alternatively, could have proceeded to obtain execution on its judgment despite the pendency of Appellant’s motion.1 Accordingly, the appealed order is reversed and this cause is remanded for further proceedings.
REVERSED AND REMANDED.
ZEHMER, ALLEN and WEBSTER, JJ., concur. . Rule 1.540(b) explicitly provides that, "A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation."