JOAN WILCOX, APPELLANT,
v.
A. REYNOLDS MORSE, MICHAEL WARD STOUT, AND ALBERT FIELD, APPELLEES

Fla. 2d DCA | 1997-05-07
No. 96-02859
CAMPBELL, A.C.J., and SCHOONOVER and FULMER, JJ., concur.
693 So. 2d 91 Florida District Court of Appeal, Second District (1997) Positive Treatment
Cited by 6 cases

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Holding

A notice of hearing on a motion to abate constitutes sufficient record activity to prevent dismissal for lack of prosecution.


Headnotes

[1] A notice of hearing filed with the court constitutes sufficient record activity to prevent dismissal for lack of prosecution under Rule 1.420(e).

[2] A motion to abate, by itself, may not be considered record activity designed to advance a case toward conclusion.

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Facts & Procedural History

Appellant sued for breach of contract. After a period of inactivity, appellant filed a motion to abate and a notice of hearing on that motion. Appelle…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The appellant, Joan Wilcox, challenges the trial court’s final order granting a motion to dismiss for lack of prosecution filed by appel-lees, A. Reynolds Morse, Michael Ward Stout, and Albert Field. We agree with appellant that the trial court erred by ruling that no sufficient record activity existed within one year to withstand the appellee’s motion to dismiss.

Appellant filed suit against appellees on August 8, 1989, claiming breach of contract. The last pleading filed, before appellant filed a motion to abate on August 14, 1995, occurred on November 2, 1994, at which time appellees filed answers to appellant’s amended complaint and an objection and motion to strike a notice of hearing on appellant’s motion for default. A notice of hearing on appellant’s motion to abate was filed on August 18, 1995, and an amended notice of hearing was then filed on October 16, 1995. Appellees Morse and Stout filed a motion to dismiss for lack of prosecution on November 29,1995, and appellee Field filed the same on December 6, 1995, claiming that no record activity had occurred within one year. Ap-pellees argued that appellant’s motion to abate could not be considered record activity and thus the last affirmative activity was the November 2,1994, filing by appellees. The trial court denied the appellant’s motion to abate on December 8, 1995, and then entered an order granting appellees’ motion to dismiss for lack of prosecution on June 13, 1996. Appellant timely filed a notice of appeal.

The issue is whether any record activity occurred within the one year period to defeat the appellee’s motion to dismiss for lack of prosecution. We hold that the notice of hearing on appellant’s motion to abate, filed with the court within the one year time period, constituted sufficient record activity.

Florida Rule of Civil Procedure 1.420(e) states that, absent a showing of good cause, if no activity on the record, by filing of pleadings, order of court, or otherwise, has occurred for a period of one year, the cause shall be dismissed by the court on its own motion or on the motion of any interested person. Record activity has been held to be “more than a mere passive effort” to keep the case on the docket. Eastern Elevator, Inc. v. Page, 263 So. 2d 218, 220 (Fla.1972). The activity must be designed to advance the case toward conclusion. Id.

In Grooms v. Garcia, 482 So. 2d 407 (Fla. 2d DCA 1985), this court held that a notice of trial or hearing is sufficient activity to avoid the effect of a motion to dismiss under rule 1.420(e). Appellees in this case argue that because the notice of hearing was set on the motion to abate and since such motion is designed to only postpone the conclusion of the case, the notice of hearing on such motion cannot be considered record activity. However, as the Grooms case held, a notice of hearing allows a ruling on a motion to be made, advancing the case toward conclusion. Grooms, 482 So. 2d at 408. Thus, a notice of hearing is the type of record activity that precludes dismissal under rule 1.420.(e) See also Jones v. Garcia, 536 So. 2d 277 (Fla. 2d DCA 1988); Breeding v. Yellow Cab Co., Inc., 505 So. 2d 655 (Fla. 2d DCA 1987)(both cases holding that a notice of hearing is sufficient record activity to preclude dismissal based on lack of prosecution).

Other districts have held the same. In Gelb v. Miranda, 456 So. 2d 548 (Fla. 3d DCA 1984), the Third District held that a notice of hearing is sufficient record activity to defeat a motion for lack of prosecution. The Fifth District stated that a motion for mediation, standing alone, was not record activity implemented to advance the case forward to a conclusion. Heinz v. Watson, 615 So. 2d 750 (Fla. 5th DCA 1993). However, the court went on to state that if appellant’s attorney had set the matter for hearing, dismissal of the ease would not have been justified. Id. at 753 (emphasis added).

Since the last filing before the motion to abate occurred on November 2, 1994, appellant’s notice of hearing regarding the motion to abate, filed on August 18, 1995, fell within the one year rule. The trial court erred by stating that based on the appellant’s motion to abate, no record activity had occurred to preclude the granting of appellees’ motion to dismiss for lack of prosecution. The trial court should have looked to the date the notice of hearing was filed.

The notice of hearing constituted record activity and fell within the one year time period. As such, the trial court erred in granting appellees’ motion to dismiss for lack of prosecution. Accordingly, we reverse.

Reversed and remanded.

CAMPBELL, A.C.J., and SCHOONOVER and FULMER, JJ., concur.


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Cited By

  • Totura & Co., Inc. v. Williams, 754 So. 2d 671 (Fla. 2000)
    …r otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties.... . Compare Wilcox v. Morse, 693 So. 2d 91, 92 (Fla. 2d DCA 1997) (reversing dismissal for lack of prosecution because "a notice of hearing allows a ruling on a motion to be made, advancing the case toward conclusion”) (citing Grooms v. Garcia, 482 So. 2d 407, 408 (Fla. 2d DCA 1985)), with H…
  • Lemuel L. Cole v. Dep't OF Corr., 726 So. 2d 854 (Fla. 4th DCA 1999)
    …o. 2d 718, 720 (Fla.1987). In F.X. Smith v. Broward County, 654 So. 2d 1297, 1298 (Fla. 4th DCA 1995), we held that a letter to the judge requesting a trial date is sufficient record activity to avoid dismissal. [*856] Similarly, in Wilcox v. Morse, 693 So. 2d 91, 92 (Fla. 2d DCA 1997), the second district held that a notice of hearing also serves as sufficient activity to avoid the effect of a motion to dismiss under rule 1.420(e). See also Heinz v. Watson, 615 So. 2d 750, 753 (Fla. 5th DCA), rev. denied, 6…
  • Dakich v. Gilbert, 753 So. 2d 658 (Fla. 4th DCA 2000)
    …earing constituted record activity sufficient to preclude dismissal under the Rule. See Brown v. Meyers, 702 So. 2d 646 (Fla. 4th DCA 1997); Samuels v. Palm Beach Motor Cars Ltd. by Simpson, Inc., 618 So. 2d 310 (Fla. 4th DCA 1993); Wilcox v. Morse, 693 So. 2d 91, 92 (Fla. 2d DCA 1997). REVERSED. DELL, POLEN and GROSS, JJ., concur.…

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