LYNBROOK COURT CONDOMINIUM ASSOCIATION, APPELLANT,
v.
CESAR ARANA AND MARIA DEL ROSARIO ARANA, APPELLEE
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Lynbrook Court Condominium Association appeals an order regarding a conditional dismissal for failure to prosecute. The appellate court dismisses the appeal, holding that the trial court's sua sponte order was conditional rather than final, and the plaintiffs satisfied the condition by advancing the case, making the subsequent ruling a nonappealable interlocutory order.
The trial court's order is a nonappealable interlocutory order because the sua sponte dismissal order was conditional rather than final. The plaintiffs satisfied the condition by taking steps to diligently prosecute the case, so the dismissal never took effect and the trial court properly retained jurisdiction.
[1] A sua sponte order of dismissal that is conditioned on a party's failure to prosecute is not a final order if the condition is satisfied.
[2] An order that confirms a court's continued jurisdiction over a case, after determining that a conditional dismissal order did not take effect, is a nonappealable interloc…
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Join FLexlaw to unlock all legal intelligence“The sua sponte order was a conditional order of dismissal.”
Establishes the nature of the trial court's order as conditional rather than final
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAfter eleven months without record activity, the trial court sua sponte entered a conditional dismissal order giving the plaintiffs 30 days to show di…
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COPE, Judge.
Lynbrook Court Condominium Association appeals an order which Lynbrook characterizes as one which grants relief from judgment by reinstating an action which was dismissed for failure to prosecute. We conclude that the order under review is not appealable, and dismiss the appeal.
After eleven months without record activity in this case, the trial court sua sponte entered an order which stated:
THE COURT has examined the file in the above styled cause and there appears to have been no genuine action by any party for a sufficient period to indicate that • the herein matter is still active. Therefore, it is hereby ORDERED that this matter shall stand dismissed thirty (30) days from the date of this Order unless it appears that this matter is diligently being prosecuted in good faith within that period of thirty (30) days.
By the court’s own account, this order was intended to serve as a “wake up call” to alert counsel for plaintiffs-appellees that the one year failure-to-prosecute period1 was about to expire and that forward motion would be required in order to retain the case on the docket. Plaintiffs were awakened and responded by setting a hearing on the defendant’s pending motion to dismiss. Plaintiffs did not, however, move to vacate the ,sua sponte order. At a status conference after the thirty-day period expired, the defendant argued that the sua sponte order was a final order of dismissal. Defendant contended that since there had been neither a motion for rehearing nor a notice of appeal, it followed that the case had been finally dismissed.
Rejecting this argument, the trial court ruled that the case had not been dismissed and remained pending. The defendant has appealed.
We concur with the trial court’s analysis. The sua sponte order was a conditional order of dismissal. See Ponton v. Gross, 576 So. 2d 910, 911 (Fla. 1st DCA 1991); Department of Transp. v. Post, Buckley, Schuh & Jernigan, 557 So. 2d 145, 146 (Fla. 1st DCA 1990). It required only that the plaintiffs take steps to make “it [appear] that this matter is diligently being prosecuted in good faith within that period of thirty (30) days.” The trial court found that plaintiffs had satisfied the condition by taking action to advance the case. It follows that the dismissal order did not take effect and the trial court correctly ruled that it continued to have jurisdiction over the cause.
It follows that this appeal is taken from a nonappealable order, and must be dismissed. See Marsh & McLennan, Inc. v. Aerolineas Nacionales Del Ecuador, 530 So. 2d 971 (Fla. 3d DCA 1988) (en banc). The appellant’s theory of jurisdiction was that the dismissal order had been effective to dismiss the action, and that the order now under review was an order granting relief from judgment under Rule 1.540, by reinstating the dismissed action. See Allstate Ins. Co. v. Bucelo, 650 So. 2d 1128, 1129-30 & n. 1 (Fla. 3d DCA 1995) (where dismissed action is reinstated pursuant to Florida Rule of Civil Procedure 1.540, order is appealable under Florida Rulé of Appellate Procedure 9.130(a)(4)). For the reasons already explained, in reality there was no dismissal. The trial court’s ruling at status conference that it continued to have jurisdiction of this case was simply a nonappealable interlocutory order. It follows that the appeal must be dismissed.
Appeal dismissed.2
. See Florida Rule of Civil Procedure 1.420(e).
. As illustrated by this case, the form of the sua sponte order can cause confusion and uncertainty over issues of finality. See Ponton, 576 So. 2d at 911; Post, 557 So. 2d at 146. A different form of order would be preferable.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Blakeslee v. Morse Operations, Inc., 720 So. 2d 1166 (Fla. 4th DCA 1998)…f appeals this order. Defendant has moved to dismiss the appeal, arguing that the earlier order denying leave to amend and requiring plaintiff to arbitrate or suffer dismissal was the appeal-able order. In Lynbrook Court Condominium Ass’n v. Arana, 711 So. 2d 249, 250 (Fla. 3d DCA 1998), the trial court entered an order providing that “this matter shall stand dismissed thirty (30) days from the date of this Order unless it appears that this matter is diligently being prosecuted in good faith within that peri…
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Shamrock Jewelers, Inc. v. Schillaci, 126 So. 3d 1073 (Fla. 4th DCA 2011)…f the July 8 order, providing for automatic dismissal in the absence of record activity, did not apply. Under these circumstances, the July 8 order was a conditional order and not a final, appealable order. See Lynbrook Court Condo. Ass’n v. Arana, 711 So. 2d 249, 250 (Fla. 3d DCA 1998). Due to the record activity, the automatic dismissal of paragraph 1 never took effect. Even if the judge orally dismissed the case at the status conference, the court would have had to reduce the dismissal to writing to creat…
Authorities Cited
- Alfonson Detroy Ponton and Reginald J. Williams v. Officer B.E. Gross, 576 So. 2d 910 (Fla. 1st DCA 1991)
- Marsh & McLennan, Inc. v. Aerolineas Nacionales del Ecuador, 530 So. 2d 971 (Fla. 3d DCA 1988)
- Dep't OF Transp. v. Post, 557 So. 2d 145 (Fla. 1st DCA 1990)
- Allstate Ins. Co. v. Bucelo, 650 So. 2d 1128 (Fla. 3d DCA 1995)