JOHN L. NORMAN, APPELLANT,
v.
WYNDEL G. DARVILLE AND OFFICE OF STATE ATTORNEY, APPELLEES
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John L. Norman appealed a trial court's dismissal of his civil action for lack of prosecution. The appellate court reversed, holding that a change of address filing constituted sufficient record activity under Florida law to preclude dismissal, and that the trial court applied an outdated legal standard.
The court held that the change of address filing constituted record activity sufficient to preclude dismissal. The trial court erred by applying the outdated 'advance toward resolution' standard; the correct standard is a bright-line test requiring only 'any activity' appearing in the record within one year prior to filing a motion to dismiss.
[1] A dismissal for failure to prosecute requires a motion to dismiss to be filed in the record.
[2] The one-year period for calculating inactivity for failure to prosecute is measured from the last record activity to the filing of the motion to dismiss.
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Join FLexlaw to unlock all legal intelligence“Rule 1.420(e) provides for dismissal for failure to prosecute when "it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months."”
Establishes the statutory text governing dismissal for lack of prosecution
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Join FLexlaw to unlock all legal intelligenceNorman filed a complaint against Wyndel Darville and the Office of the State Attorney on March 11, 2004. On May 31, 2005, Norman filed a change of add…
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STRINGER, Judge.
John L. Norman seeks review of the trial court’s order dismissing his case for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). We reverse because the trial court erred in de termining that there was no record activity within ten months of service of the notice of lack of prosecution.
Rule 1.420(e) provides for dismissal for failure to prosecute when “it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months.” Norman filed a complaint against Wyndel Darville and the Office of the State Attorney (together “the Defendants”) on March 11, 2004. On February 24, 2006, the Defendants filed a notice of lack of prosecution, in which they alleged that there had been ten months of record inactivity. The last document filed by Norman was a change of address filed on May 31, 2005, which was less than ten months prior to the notice of lack of prosecution. Prior to that, Norman had filed a response to a defensive motion to dismiss on March 2, 2005.
Norman argues that the change of address he filed on May 31, 2005, constituted record activity sufficient to preclude dismissal of his action against the Defendants. In its order dismissing the complaint, the trial court determined that the change of address did not constitute record activity because it did not “advance! ] this action toward resolution.” While this used to be the standard for determining whether record activity was sufficient to preclude dismissal for failure to prosecute, the supreme court expressly receded from this standard in Wilson v. Salamon, 923 So. 2d 363 (Fla.2005). Instead, the court adopted a bright-line test that involves a review of the face of the record for “any activity” in the preceding time period. Id. at 368.
Wilson has uniformly been interpreted to mean that any document appearing in the record within one year prior to the filing of a motion to dismiss precludes the entry of dismissal for failure to prosecute. See Reddy v. Farkus, 933 So. 2d 595, 598 (Fla. 5th DCA 2006) (notice of cancellation of hearing precludes dismissal); Walker v. McDonough, 929 So. 2d 1127, 1128 (Fla. 4th DCA 2006) (notice of change of address and notice of absence from jurisdiction preclude dismissal); Hunnewell v. Palm Beach County, 925 So. 2d 468, 470 (Fla. 4th DCA 2006) (entry of order denying motion to dismiss precludes dismissal); Richards v. Sheriff of Palm Beach County, 925 So. 2d 1166, 1168 (Fla. 4th DCA 2006) (filing of motion to withdraw precludes dismissal); Nie v. Beaux Gardens Assoc., Ltd., 923 So. 2d 1200 (Fla. 3d DCA 2006) (filing of notices for pretrial conference and notice for case management conference preclude dismissal).
Diamond Drywall Sys., Inc. v. Mashan Contractors, Inc., 943 So. 2d 267, 269 (Fla. 3d DCA 2006). Thus, the trial court erred in determining that the change of address did not constitute record activity sufficient to preclude dismissal in this case.
Reversed.
DAVIS and VILLANTI, JJ., Concur.
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Weston TC LLLP v. CNDP Mktg. Inc., 66 So. 3d 370 (Fla. 4th DCA 2011)…v. Bakala, 58 So. 3d 423 (Fla. 2d DCA 2011) (a suggestion of death and motion for substitution); Guerrero v. Miami-Dade Cnty., 994 So. 2d 472 (Fla. 3d DCA 2008) (a timely response to a motion to dismiss for failure to prosecute); Norman v. Darville, 964 So. 2d 864 (Fla. 2d DCA 2007) (a notice of change of address); London v. Baxter Healthcare Corp., 965 So. 2d 307 (Fla. 3d DCA 2007) (a status report); Miami-Dade Cnty. v. Walker, 948 So. 2d 68 (Fla. 3d DCA 2007) (a notice of change of firm name); Johnson v. Ma…
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Citibank, N.A. v. Seymour Konigsberg & Mortg. Elec. Registration Sys., 149 So. 3d 1185 (Fla. 2d DCA 2014)…cution. See Fla. R. Civ. P. 1.420(e) (defining record activity as the “filing of pleadings, order of the court, or otherwise”); Chemrock, 71 So. 3d at 792 (stating that “any filing of record is sufficient to preclude dismissal”); Norman v. Darville, 964 So. 2d 864, 865 (Fla. 2d DCA 2007) (determining that a filed change of address constituted record activity to preclude dismissal for lack of prosecution); Weston TC LLLP, 66 So. 3d at 371 (determining that a filed notice of absence constituted record activity…
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Padron v. Alina T. Alonso, 970 So. 2d 399 (Fla. 3d DCA 2007)…t” that precludes dismissal where “review of the face of the record reveals activity by ‘filings of pleadings, order of court, or otherwise.’ ” Id. at 368 (citing Metro. Dade County v. Hall, 784 So. 2d 1087, 1090 (Fla.2001)); see Norman v. Darville, 964 So. 2d 864, 865 (Fla. 2d DCA 2007) (observing “the court [in Wilson ] adopted a bright-line test that involves a review of the face of the record for ‘any activity’ in the preceding time period”); see also London v. Baxter Healthcare Corp., 965 So. 2d 307 (Fla…
Previewing 3 of 4 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)
- Elwood J. Hunnewell, Jr. v. Palm Beach Cnty., 925 So. 2d 468 (Fla. 4th DCA 2006)
- Tejeda v. State, 943 So. 2d 267 (Fla. 3d DCA 2006)
- Neville D. Richards v. The Sheriff OF Palm Beach Cnty., 925 So. 2d 1166 (Fla. 4th DCA 2006)
- Walker v. McDONOUGH, 929 So. 2d 1127 (Fla. 4th DCA 2006)
- NIE v. Beaux Gardens Assocs., Ltd., 923 So. 2d 1200 (Fla. 3d DCA 2006)
- Devender Reddy and Nagender Reddy v. Farkus, 933 So. 2d 595 (Fla. 5th DCA 2006)