CLARENCE DIXON AND GLORIA DIXON, APPELLANTS,
v.
CITY OF RIVIERA BEACH, APPELLEE
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The court held that the trial court erred in dismissing the cause of action for lack of prosecution because the delays were attributable to the attorneys, not the plaintiffs.
Plaintiffs' attorneys took actions regarding trial setting and withdrawal, but the case languished. The defendant moved to dismiss for lack of prosecu…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
The plaintiffs appeal the trial court’s dismissal of their cause of action for lack of prosecution. We reverse. See Mikos v. Sarasota Cattle Co., 453 So. 2d 402 (Fla.1984).
In March, 1993, the law firm representing plaintiffs in the trial court filed a motion to set cause for trial. Two months later, one lawyer in the firm — not the firm nor a named member — filed a motion to withdraw; and an order was entered, allowing him to withdraw. The law firm was not named in either the motion or order; yet the order provided that all notices were to go to the plaintiffs. The trial court did not set the case for trial. Sometime thereafter, the plaintiffs’ current lawyer undertook representing them without filing a notice of appearance.
On May 2, 1994, the defendant filed a motion to dismiss for lack of prosecution. The certificate of service shows the plaintiffs’ present lawyer as having been mailed a copy on April 28, 1994. There is no notice of hearing on the motion to dismiss in the record on appeal, but the plaintiffs’ current lawyer has attached to his brief a fax copy, indicating service of such notice upon him on May 10, 1994, for a hearing to be held on May 18, 1994.
Plaintiffs’ current lawyer filed nothing pri-or to the hearing in opposition to the motion to dismiss. His first pleading in the record, following the trial court’s order of dismissal, is a motion for rehearing and to vacate the order of dismissal, based on (1) the 1993 motion to set cause for trial, and (2) the absence of service upon him of the motion to dismiss prior to the date of the May 18,1994, hearing.
Because it was the lawyers, not the plaintiffs, who contributed to the errors recited hereinabove, we believe it inappropriate to punish the plaintiffs.
GLICKSTEIN, WARNER and SHAHOOD, JJ., concur.
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Modellista de Europa (Corp.) v. Redpath Inv. Corp., 714 So. 2d 1098 (Fla. 4th DCA 1998)…ffect, the one year period should not be extended. Tarken v. State Dep’t. of Transp., 629 So. 2d 258 (Fla. 3d DCA 1993). Appellant’s next point is that it should not be punished for.the fault of its attorneys, citing Dixon v. City of Riviera Beach, 662 So. 2d 424 (Fla. 4th DCA 1995). The language in Dixon upon which appellant relies is essentially dicta. In that case plaintiffs’ counsel had filed a motion to set the cause for trial and the motion was still pending when.the court subsequently dismissed the ac…
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Maher v. Best Western INN, 667 So. 2d 1024 (Fla. 5th DCA 1996)…teresting opinion dealing with dismissal for want of prosecution in which the court said it was reversing the dismissal because it was the lawyers, not the plaintiffs themselves who contributed to the lack of record activity. Dixon v. Riviera Beach, 662 So. 2d 424 (Fla. 4th DCA 1995). If this truly was the legal basis for the ruling, it is an interesting new development in the law. Without citing to Kozel v. Ostendorf, 629 So. 2d 817 (Fla.1993), it seems to utilize the reasoning of Kozel to protect a party fr…
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Adel Vaelizadeh v. Mahnaz Hossaini, 174 So. 3d 579 (Fla. 4th DCA 2015)…suggests that the father’s untimely response to the relocation petition was not due to the father’s willful [*584] inaction, but due to his original attorney’s unavailability while tending to an ill family member. Cf. Dixon v. City of Riviera Beach, 662 So. 2d 424, 425 (Fla. 4th DCA 1995) (“Because it was the lawyers, not the plaintiffs, who contributed to the erroi-s recited hereinabove, we believe it inappropriate to punish the plaintiffs.”). Fourth, while the cases which the father cites are distinguishab…
Authorities Cited
- Mikos v. Sarasota Cattle Co. & Charles E. Early, 453 So. 2d 402 (Fla. 1984)