FERMAN G. DYE, APPELLANT,
v.
SECURITY PACIFIC FINANCIAL SERVICES, INC., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellant Dye appeals a dismissal for failure to prosecute filed by Security Pacific one year after Security Pacific's own motion to dismiss for failure to state a cause of action remained pending and undisposed. The court reverses, holding that when a dispositive motion is pending before the court, the duty to proceed rests with the court, not the plaintiff, and dismissal for failure to prosecute is improper during that period.
A trial court may not dismiss an action for failure to prosecute when a dispositive motion is pending before the court and the parties are awaiting the court's ruling. During the period the court is deliberating on a dispositive motion, the duty to proceed rests with the court, not the parties, and the cause cannot be dismissed for lack of record activity.
[1] A motion to disqualify a judge constitutes record activity for purposes of a motion to dismiss for failure to prosecute.
[2] A trial court must rule on a motion to disqualify a judge immediately upon its filing.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[W]henever 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.”
Establishes the primary rule that when a dispositive motion is pending, the duty to proceed rests with the court, not the parties, and dismissal for failure to prosecute is improper during deliberation on that motion.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendant Security Pacific filed a motion to dismiss the complaint for failure to state a cause of action. One year later, without the trial court hav…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Motion For Recusal cases and more on FLexlaw
ERVIN, J.
This is an appeal from a final order dismissing a cause of action for failure to prosecute. One year after defendant Security Pacific had filed its motion to dismiss the complaint for failure to state a cause of action, it filed a motion to dismiss the action for failure to prosecute. We agree with 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 that period of the court’s deliberation, the cause cannot be dismissed for lack of record activity.” The Florida Supreme Court appears to have approved the above rule in Fuster-Escalona v. Wisotsky, 781 So. 2d 1063 (Fla.2000). There the court exercised its conflict review powers and determined that the Fourth District Court of Appeal’s decision in Fuster-Escalona v. Wisotsky, 715 So. 2d 1053 (Fla. 4th DCA 1998), holding the trial court had correctly dismissed a complaint for failure to prosecute for the reason that the plaintiffs pending motion to recuse the trial court without setting the case for hearing was insufficient record activity, was in express and direct conflict with Lukowsky.
Although the primary basis for the supreme court’s decision turned on a construction of section 38.10, Florida Statutes (1993), providing that once a motion to disqualify is filed, a judge is required to promptly act on the motion, and nothing in the statute obligated the party requesting the disqualification to call for a hearing on the motion, other language in the court’s opinion goes beyond the statutory provisions:
The trial judge is the manager of the docket and has the ultimate responsibility to rule on pleadings that are properly pled before the court, in accord with applicable rules of procedure and court precedent. See Toney v. Freeman, 600 So. 2d 1099, 1100 (Fla.1992) (“Trial judges should be encouraged to take an active role in keeping themselves informed of the cases assigned to them.”); Lukowsky v. Hauser & Metsch, P.A., 677 So. 2d 1383, 1384 (Fla. 3d DCA 1996) (“[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.”).
Fuster-Escalona, 781 So. 2d at 1065.
The Fourth District has similarly refused to limit Fuster-E scalona to its specific facts. In Abaddon, Inc. v. Schindler, 826 So. 2d 436 (Fla. 4th DCA 2002), the court held that the plaintiffs pending motion to appoint a commissioner in the State of Washington to take testimony and receive subpoenaed documents precluded dismissal for failure to prosecute, even though the plaintiff did not set a hearing on the motion, and there had been no other record activity during the year preceding the defendants’ motion to dismiss for failure to prosecute.
REVERSED and REMANDED.
BARFIELD and WOLF, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Tompkins v. First Union Nat'l Bank, 897 So. 2d 1282 (Fla. 2005)…PER CURIAM. We initially accepted jurisdiction to review Tompkins v. First Union National Bank, 833 So. 2d 199 (Fla. 5th DCA 2002), based on an apparent conflict with Dye v. Security Pacific Financial Services, Inc., 828 So. 2d 1089 (Fla. 1st DCA 2002). Upon further consideration, we now conclude that jurisdiction was improvidently granted. Accordingly, this review proceeding is dismissed. It is so ordered. PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BEL…
-
Sewell Masonry Co. v. DCC Constr., Inc., 862 So. 2d 893 (Fla. 5th DCA 2003)…irrelevant. The court placed “emphasis on the immediacy with which the rule and case law require a [*899] judge to act when presented with such a motion.” 781 So. 2d at 1066.3 The First District, in Dye v. Security Pacific Financial Services, Inc., 828 So. 2d 1089 (Fla. 1st DCA 2002), relied on Lukowsky and Fuster-Escalona to hold that where a motion to dismiss a complaint has not been disposed of, even though it has never been set for hearing, it is error to dismiss a cause of action for failure to prosecute…
-
Erickson v. Breedlove, 937 So. 2d 805 (Fla. 5th DCA 2006)…899 (Fla. 5th DGA 2003), rev. dismissed, 870 So. 2d 823 (Fla.2004); Patton v. Kera Technology, Inc., 895 So. 2d 1175 (Fla. 5th DCA), rev. granted, 912 So. 2d 318 (Fla.2005). We certify conflict with Dye v. Security Pacific Financial Services, Inc., 828 So. 2d 1089 (Fla. 1st DCA 2002). AFFIRMED; Conflict CERTIFIED. GRIFFIN and SAWAYA, JJ„ concur. . This rule was amended effective January 1, 2006. Because all of the relevant events at the trial court level occurred prior to the effective date of the amendmen…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Toney v. Nebuchadnezzar Freeman, 600 So. 2d 1099 (Fla. 1992)
- Fuster-Escalona v. Wisotsky, 781 So. 2d 1063 (Fla. 2000)
- Lukowsky v. Hauser & Metsch, P.A., 677 So. 2d 1383 (Fla. 3d DCA 1996)
- Phillips v. State, 826 So. 2d 436 (Fla. 5th DCA 2002)
- Reynaldo Camacho and Carmen Camacho v. The Travelers Indem. Co., 715 So. 2d 1053 (Fla. 3d DCA 1998)
- Fuster-Escalona v. Wisotsky, 715 So. 2d 1053 (Fla. 4th DCA 1998)