NEVILLE D. RICHARDS, APPELLANT,
v.
THE SHERIFF OF PALM BEACH COUNTY, APPELLEE
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Richards brought a civil action against Palm Beach County Sheriff for false imprisonment, false arrest, and malicious prosecution arising from his arrest in 1999 despite being identified by the assaulted officer as not the perpetrator. The trial court dismissed the case for failure to prosecute, but the appellate court reversed based on recent Florida Supreme Court precedent holding that trial court orders resolving properly filed motions constitute record activity precluding dismissal.
The court held that trial court orders entered and filed to resolve motions properly filed in good faith should be treated as record activity precluding dismissal under Rule 1.420(e). Because the trial court entered an order granting Richards' attorney's motion to withdraw within six months of the sua sponte order to show cause, there was sufficient record activity to preclude dismissal for failure to prosecute.
[1] A trial court order granting a motion to withdraw filed in good faith constitutes record activity that precludes dismissal for failure to prosecute under Florida Rule of…
[2] A trial court's determination of good cause for failure to prosecute is reviewed for an abuse of discretion.
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Join FLexlaw to unlock all legal intelligence“[T]rial court orders that are entered and filed to resolve motions that have been properly filed in good faith should be treated as record activity precluding dismissal under rule 1.420(e) of the Florida Rules of Civil Procedure.”
Establishes the legal standard from Wilson v. Salomon that overruled prior precedent and formed the basis for reversal
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Join FLexlaw to unlock all legal intelligenceIn March 1999, undercover police officer Agent Dimarco was assaulted during a reverse sting operation. Although the assailant was described as Hispani…
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POLEN, J.
This case began with the alleged assault of Appellant, Neville Richards, in March of 1999. An undercover police officer with the Palm Beach County Sheriffs Department, Agent Dimarco, was assaulted in a reverse sting operation gone awry, and Palm Beach County deputies established a perimeter to look for the assailant. Although the assailant was allegedly a Hispanic or white male, and Richards is a dark-skinned African-American male, Richards was detained by deputies. After Richards’ initial detainment, Agent Dimar-co arrived at the scene and allegedly indicated that Richards was not his assailant. Despite this, Richards was arrested. Richards was prosecuted for resisting arrest without violence, but the case against him was eventually dropped.
In October of 2002, Richards filed a civil complaint against Palm Beach County, alleging (1) false imprisonment; (2) false arrest; and (3) malicious prosecution.
On November 19, 2004, the trial court issued a sua sponte order to show cause why the case should not be dismissed for failure to prosecute, pursuant to Florida Rule of Civil Procedure 1.420(e). Richards’ response requested that the trial court take judicial notice of his attorney’s motion to withdraw in May of 2004.
The trial court found that Richards had failed to demonstrate good cause and dismissed the case for failure to prosecute, citing Modellista de Europa (Corp.) v. Redpath Inv. Corp., 714 So. 2d 1098 (Fla. 4th DCA 1998). Based on the Florida Supreme Court’s decision in Wilson v. Salomon, 923 So. 2d 363 (Fla.2005), we reverse and remand.
A trial court’s determination that there is no good cause in dismissing an action for failure to prosecute is reviewed using an abuse of discretion standard. Classical Financial Servs., L.L.C. v. G2 Resources, Inc., 898 So. 2d 251, 252 (Fla. 4th DCA 2005). “The rule is mandatory; ‘[u]nless a party can satisfy the exceptions provided for in the rule, it specifically states ‘shall dismiss,’ and there is no discretion on the trial court’s part if it is demonstrated-to the trial court that no action toward prosecution has been taken within a year.’ ” Havens v. Chambliss, 906 So. 2d 318, 319 (Fla. 4th DCA 2005) (quoting CPI Mfg. Co. v. Industrias St. Jack’s, 870 So. 2d 89, 91 (Fla. 3d DCA 2003)).
While Modellista de Europa (Corp.) v. Redpath Inv. Corp. states: “Neither the motion to withdraw, nor the court’s order granting the motion, nor the appearance of new counsel are considered the type of ‘record activity’ which will avoid dismissal under Rule 1.420(e),” the supreme court’s recent decision in Wilson
changes this result. 714 So. 2d at 1099 n. 2.
Wilson states: “[TJrial court orders that are entered and filed to resolve motions that have been properly filed in good faith should be treated as record activity precluding dismissal under rule 1.420(e) of the Florida Rules of Civil Procedure.” 923 So. 2d at 363-64. “The plain language of the rule contemplates that an action cannot be dismissed under the rule for failure to prosecute if some ‘action has been taken by filing of pleadings, order of court, or otherwise’ within the past year.” Id. at 366.
Based on this finding, and based on the fact that the trial court entered an order granting Richards’ attorney’s motion to withdraw within six months time of its sua sponte order to show cause, we find that there was record activity precluding dismissal of Richards’ case for failure to prosecute.
We reverse and remand to the trial court for proceedings consistent with this opinion.
KLEIN and SHAHOOD, JJ., concur. . 923 So. 2d 363 (Fla.2005).
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Weston TC LLLP v. CNDP Mktg. Inc., 66 So. 3d 370 (Fla. 4th DCA 2011)…930 So. 2d 853 (Fla. 2d DCA 2006) (an interrogatory); Walker v. McDonough, 929 So. 2d 1127 (Fla. 4th DCA 2006) (two notices of change of address, one from each side, and defense counsel’s notice of absence); Richards v. Sheriff of Palm Beach Cnty., 925 So. 2d 1166 (Fla. 4th DCA 2006) (a motion by an attorney to withdraw and the order granting the motion); Hunnewell v. Palm Beach Cnty., 925 So. 2d 468 (Fla. 4th DCA 2006) (an order denying a first motion to dismiss); Nie v. Beaux Gardens Assocs., Ltd., 923 So.…
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Mourning v. Ballast Nedam Constr., Inc., 964 So. 2d 889 (Fla. 4th DCA 2007)…a bright-line test to balance the competing need of litigants to have claims heard on the merits with the court’s need to dispose of cases that are not being prosecuted.” Id. In the sixth bright-line case, Richards v. Sheriff of Palm Beach County, 925 So. 2d 1166 (Fla. 4th DCA 2006), this Court continued its bright-line application of Rule 1.420(e). In Richards, this Court yet again reversed an order dismissing a case for lack of prosecution, finding sufficient activity on the face of the record during the r…
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Johnson v. Maroone Ford LLC, 944 So. 2d 1059 (Fla. 4th DCA 2006)…to the plaintiffs’ second request for production to defendant filed on June 8, 2005. The standard of review of a trial court’s dismissal of a cause of action for failure to prosecute is abuse of discretion. Richards v. Sheriff of Palm Beach County, 925 So. 2d 1166, 1167 (Fla. 4th DCA 2006). Florida Rule of Civil Procedure 1.420(e) (2005) provides: Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred…
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
- Gloriann Wilson v. Eva J. Salamon, M.D., 923 So. 2d 363 (Fla. 2005)
- CPI Mfg. Co., Inc. v. Industrias ST. Jack's, 870 So. 2d 89 (Fla. 3d DCA 2003)
- Modellista de Europa (Corp.) v. Redpath Inv. Corp., 714 So. 2d 1098 (Fla. 4th DCA 1998)
- Havens v. Hendry Chambliss, 906 So. 2d 318 (Fla. 4th DCA 2005)
- Classical Fin. Servs., L.L.C. v. G2 Res., Inc., 898 So. 2d 251 (Fla. 4th DCA 2005)