REBECCA LUKOWSKY, APPELLANT,
v.
HAUSER & METSCH, P.A., ET AL., APPELLEES
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The court held that a case cannot be dismissed for lack of record activity when the parties are awaiting a ruling on a dispositive motion.
Plaintiff's legal malpractice action was dismissed for failure to prosecute while a summary judgment motion was pending. The defendants moved to dismi…
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PER CURIAM.
The plaintiff in a legal malpractice action appeals from an order dismissing her complaint for failure to prosecute. For the following reasons, we reverse.
While a motion for summary judgment was pending before the trial court, the defendants moved to dismiss for failure to prosecute on the ground that there had been no record activity for over one year. The trial court granted the motion, and in doing so, erred.
Appellant’s failure to proceed “in reb-anee upon anticipated rulings by the court on these motions was sufficient demonstration of good cause, we think, to preclude the dismissal of [this action].” Air Line Pilots Ass’n v. Schneemilch, 674 So. 2d 782, 783 (Fla. 3d DCA 1996).
We emphasize that our holdings in this case and in Air Line Pilots establish a bright-line rule: whenever a dispositive motion is pending before the court, and the parties are awaiting the court’s ruling on that motion, the duty to proceed rests squarely upon the court. During that period of the court’s deliberation, the cause cannot be dismissed for lack of record activity.
Reversed and remanded for further proceedings.
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Cited By (12 total)
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Fuster-Escalona v. Wisotsky, 781 So. 2d 1063 (Fla. 2000)…PER CURIAM. We have for review Fuster-Escalona v. Wisotsky, 715 So. 2d 1053 (Fla. 4th DCA 1998), which expressly and directly conflicts with the decision in Lukowsky v. [*1064] Hauser & Metsch, P.A., 677 So. 2d 1383 (Fla. 3d DCA 1996). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The conflict issue is whether a motion to disqualify the trial judge provides a basis to dismiss the case for failure to prosecute pursuant to Florida Rule of Civil Procedu…1 / 2
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Sewell Masonry Co. v. DCC Constr., Inc., 862 So. 2d 893 (Fla. 5th DCA 2003)…ell takes the position that whenever a dispositive motion is pending before the trial court, the duty to proceed rests with the trial court and the cause cannot be dismissed for lack of prosecution. Sewell cites to Lukowsky v. Hauser & Metsch, P.A., 677 So. 2d 1383 (Fla. 3d DCA 1996). However, in Lukowsky, a dispositive motion for summary judgment was pending before the court and the parties were awaiting the court’s ruling. In reversing an order of dismissal, the Third District relied on its earlier decision…
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Ferman G. DYE v. Sec. Pac. Fin. Servs., Inc., 828 So. 2d 1089 (Fla. 1st DCA 2002)…th appellant Dye that because the earlier motion had been not been disposed of, the duty to proceed rested upon the lower court. We therefore reverse and remand with directions that the complaint be reinstated. In Lukowsky v. Hauser & Metsch, P.A., 677 So. 2d 1383, 1384 (Fla. 3d DCA 1996), the court adopted the following rule: “[Wjhenever a dispositive motion is pending before the court, and the parties are awaiting the court’s ruling on that motion, the duty to proceed rests squarely upon the court. During t…1 / 2
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- AIR Line Pilots Ass'n v. Dain A. Schneemilch, 674 So. 2d 782 (Fla. 3d DCA 1996)