BARTON REALTY, INC., APPELLANT,
v.
FERNANDO LOPEZ, A/K/A FERNANDO LOPEZ ESPINOSA, 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.
Barton Realty appeals a dismissal for lack of prosecution under Florida Rules of Civil Procedure Rule 1.420(e). The court affirms, holding that the plaintiff's argument that a third-party complaint created good cause to maintain the action lacks merit because there was no record activity for one year on either the main complaint or the third-party complaint.
The court held that the plaintiff did not establish good cause. The existence of an inactive third-party complaint does not excuse the lack of record activity on the main complaint. Record activity on a third-party complaint may serve as activity for the entire case, but only if such activity actually occurred; plaintiff cannot rely on an inactive third-party complaint to keep its own complaint pending indefinitely.
[1] A trial court may dismiss a case for lack of prosecution when no record activity has occurred for one year, unless the plaintiff demonstrates good cause for the action to…
[2] The resolution of a motion to dismiss for failure to prosecute requires the defendant to show one year of no record activity, followed by the plaintiff's opportunity to e…
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“the resolution of a motion to dismiss for failure to prosecute involves a two-step process. "First, the defendant is required to show there has been no record activity for one year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should remain pending."”
Establishes the legal standard for evaluating motions to dismiss for lack of prosecution in Florida.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe plaintiff, Barton Realty, Inc., filed an action against Fernando Lopez. No record activity occurred in the case for one year preceding the defenda…
The full statement of facts, procedural history, and disposition for this case are member content.
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RAMIREZ, J.
The plaintiff, Barton Realty, Inc., appeals from an order dismissing the case for lack of prosecution pursuant to rule 1.420(e), Florida Rules of Civil Procedure. Because we conclude that the plaintiff failed to show good cause as to why the action should remain pending, we affirm.
It is undisputed that no record activity in the cause took place for a period of one year.
Plaintiff argues, however, that there was good cause to maintain the case pending because there was a third-party complaint filed, which was not at issue. We stated in CPI Mfg. Co., Inc. v. Industrias St. Jack’s, S.A. De C.V., 870 So. 2d 89 (Fla. 3d DCA 2003), that the resolution of a motion to dismiss for failure to prosecute involves a two-step process. “First, the defendant is required to show there has been no record activity for one year preceding the motion.
Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should remain pending.” Id. We also made clear that the “good cause” criteria was different from the “excusable neglect” standard.
Plaintiff cites to Shaw & Keeter Motor Co., Inc. v. Maris Distrib. Co., Inc., 403 So. 2d 570 (Fla. 1st DCA 1981), for the proposition that, because the third-party complaint was not at issue, plaintiff could not notice the case for trial. He thus argues that this constitutes good cause. The Shaw case simply held that record activity on a third-party complaint during the year preceding the defendant’s motion to dismiss for failure to prosecute was sufficient to prevent the dismissal of plaintiffs complaint. Id. at 571.
In our case, there was no record activity at all, either in connection with the plaintiffs complaint or the third-party complaint. The clear import of the Shaw decision is that record activity in connection with the third-party complaint serves as activity in the entire case. Under plaintiffs argument, its complaint could simply be held captive ad infi-nitum because the third-party complaint was not being prosecuted. That is not the law in our state. The plaintiff can always move to sever pursuant to rule 1.270(b), Florida Rules of Civil Procedure.1
We thus conclude that the trial court did not abuse its discretion in dismissing the case for lack of prosecution.
. We note that filing such a motion would alone have constituted record activity sufficient to belay any motion to dismiss.
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- CPI Mfg. Co., Inc. v. Industrias ST. Jack's, 870 So. 2d 89 (Fla. 3d DCA 2003)
- Shaw & Keeter Motor Co., Inc. v. Maris Distrib. Co., Inc., 403 So. 2d 570 (Fla. 1st DCA 1981)