SETH GADINSKY AND EDWARD GADINSKY, APPELLANTS,
v.
JOHN BRUNO AND KAREN SANZO, APPELLEES
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The court held that the trial court erred in dismissing the amended complaint for lack of prosecution because a bankruptcy stay prevented proceedings and the dismissal order was defective.
Appellants' amended complaint was dismissed for lack of prosecution. Appellants appealed, arguing that a bankruptcy proceeding involving one appellee …
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DELL, Judge.
The trial court dismissed appellants’ amended complaint for lack of prosecution, pursuant to rule 1.420(e), Florida Rules of Civil Procedure. Appellants raise four points on appeal, two of which require reversal of the trial court’s order of dismissal.
First, the bankruptcy proceeding initiated by appellee Bruno was not concluded until ten months before the trial court’s order of dismissal for lack of prosecution. The bankruptcy action constituted a parallel proceeding and the automatic stay provisions of the Bankruptcy Act prevented further proceedings in the case sub judice. See Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA), dismissed, 419 So. 2d 1199 (Fla.1982); see also Barton-Malow Co. v. Gorman Co. of Ocala, 558 So. 2d 519 (Fla. 5th DCA 1990).
Second, the trial court’s order of dismissal is defective because it did not dismiss the entire action. Rather, the order only dismissed the action with finality as to appellee Sanzo. See Sandini v. Florida E. Coast Properties, 454 So. 2d 578 (Fla. 4th DCA 1984).
Accordingly, we reverse the order of dismissal for lack of prosecution and remand this case for further proceedings.
REVERSED and REMANDED.
STONE and SHAHOOD, JJ„ concur.
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Vida R. Williams v. Susquehanna Veal Farms, Inc., 828 So. 2d 420 (Fla. 1st DCA 2002)…20(e), Florida Rules of Civil Procedure, is a remedy that is available only as to an entire case. On a motion for failure to prosecute, a court may not dismiss a single claim among others, nor one defending party among others. See Gadinsky v. Bruno, 695 So. 2d 867 (Fla. 4th DCA 1997); Utset v. Campos, 548 So. 2d 834 (Fla. 3d DCA 1989); Simmons v. Dakal Dev. Corp., 632 So. 2d 717 (Fla. 2d DCA 1994). Cross Appellants have standing to appeal the order of dismissal because the order was not wholly favorable to th…
Authorities Cited
- Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA 1982)
- A.P. v. State, 558 So. 2d 519 (Fla. 5th DCA 1990)
- Barton-Malow Co. & The Aetna Cas. & Sur. Co. v. Gorman Co. OF Ocala, Inc., 558 So. 2d 519 (Fla. 5th DCA 1990)
- Sandini v. Fla. E. Coast Props. Inc., 454 So. 2d 578 (Fla. 4th DCA 1984)