ENRIQUE PADRON, APPELLANT,
v.
ALINA T. ALONSO, IN RE: THE ESTATE OF MARIA C. ALONSO, APPELLEE
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Enrique Padrón appealed the dismissal of his probate revocation action for lack of prosecution. The court reversed, holding that under the amended Florida Rule of Civil Procedure 1.420(e), any record activity within 60 days of notice of intent to dismiss precludes dismissal for failure to prosecute.
The dismissal was reversed. Under the amended Rule 1.420(e) and the bright-line test established in Wilson v. Salamon, an action cannot be dismissed for lack of prosecution if there is any record activity within 60 days following notice of intent to dismiss. Because Padrón's record showed at least one filing within that 60-day period, dismissal was improper.
[1] An action may not be dismissed for lack of prosecution without prior notice to the claimant and adequate opportunity to recommence prosecution.
[2] Florida Rule of Civil Procedure 1.420(e) requires a sixty-day period following notice of potential dismissal for failure to prosecute, during which a party may act to avo…
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Join FLexlaw to unlock all legal intelligence“any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred... unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.”
Establishes the procedural requirements of the amended rule, including the notice requirement and 60-day cure period.
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Join FLexlaw to unlock all legal intelligencePadrón filed a probate revocation action in the estate of Maria C. Alonso. The trial court dismissed the action for lack of prosecution. The record re…
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WELLS, Judge.
Enrique Padrón appeals dismissal of his probate revocation action for lack of prosecution. We reverse.
Florida Rule of Civil Procedure 1.420(e), as amended in 2005,1 addressing dismissals for failure to prosecute, governs this case. That rule provides:
Failure to Prosecute. In 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 for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
Fla. R. Civ. P. 1.420(e).
As the committee notes to this amendment explain, this subdivision “has been amended to provide that an action may not be dismissed for lack of prosecution without prior notice to the claimant and adequate opportunity for the claimant to recommence prosecution of the action to avert dismissal.” Fla. R. Civ. P. 1.420(e), committee notes (2005 amend.); see Edwards v. City of St. Petersburg, 961 So. 2d 1048, 1049 (Fla. 2d DCA 2007) (confirming that the amended rule provides a sixty-day period in which a party may act to avoid a dismissal for failure to prosecute).
In Wilson v. Salamon, 923 So. 2d 363 (Fla.2005), the Florida Supreme Court recognized a “bright line test” 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. 3d DCA 2007) (concluding that appellant’s filing met “the Wilson bright line test”); Miami-Dade County v. Walker, 948 So. 2d 68, 70 (Fla. 3d DCA 2007) (observing that “based upon Wilson, that there was record activity precluding dismissal”); Diamond Drywall Sys., Inc. v. Mashan Contractors, Inc., 943 So. 2d 267, 269 (Fla. 3d DCA 2006) (concluding that “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” and construing rule after Wilson but before 2005 amendment). Because the record in this case reveals at least one filing within sixty days of the notice of intent to dismiss for lack of prosecution, Padron’s action should not have been dismissed.
Accordingly, the order of dismissal is reversed and this case remanded for reinstatement.
. See In re Amendments to the Fla. Rules of Civil Procedure (Two Year Cycle), 917 So. 2d 176, 176-77 (Fla.2005) (setting January 1, 2006, as effective date for amendments).
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Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786 (Fla. 2011)…e decisions of the Second District Court of Appeal in Pagan v. Facilicorp, Inc., 989 So. 2d 21 (Fla. 2d DCA 2008), and Edwards v. City of St. Petersburg, 961 So. 2d 1048 (Fla. 2d DCA 2007), and the Third District Court of Appeal in Padron v. Alonso, 970 So. 2d 399 (Fla. 3d DCA 2007). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The conflict issue in this case involves the proper interpretation of Florida Rule of Civil Procedure 1.420(e), which provides for involuntary dismissal of court actions f…1 / 3
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Weston TC LLLP v. CNDP Mktg. Inc., 66 So. 3d 370 (Fla. 4th DCA 2011)…a notice of a lack of record activity; these cases thereby applied Wilson to the entire one-year period described in Rule 1.420(e). See Pagan v. Facilicorp, Inc., 989 So. 2d 21 (Fla. 2d DCA 2008) (a motion to stay the proceedings); Padron v. Alonso, 970 So. 2d 399 (Fla. 3d DCA 2007) (“at least one filing within sixty days of the notice of intent to dismiss for lack of prosecution,” but not specifying what kind of filing); Edwards v. City of St. Petersburg, 961 So. 2d 1048 (Fla. 2d DCA 2007) (“a motion for hea…
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André Pagan v. Facilicorp, Inc., 989 So. 2d 21 (Fla. 2d DCA 2008)…ew of the record reveals that there was record activity during the applicable time period.” Id. at 1050. It was thus error for the circuit court to dismiss the action when Mr. Pagan met the bright-line test for record activity. See Padrón v. Alonso, 970 So. 2d 399 (Fla. 3d DCA 2007) (holding that because the record revealed at least one filing within sixty days of the notice of intent to dismiss for lack of prosecution, the action should not have been dismissed). Accordingly, we reverse with instructions to…
Previewing 3 of 5 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)
- Metro. Dade Cnty. v. Hall, 784 So. 2d 1087 (Fla. 2001)
- In re Amendments to the Florida Rules of Civil Procedure (two Year Cycle), 917 So. 2d 176 (Fla. 2005)
- Tejeda v. State, 943 So. 2d 267 (Fla. 3d DCA 2006)
- Zachery v. State, 961 So. 2d 1048 (Fla. 2d DCA 2007)
- Miami-Dade Cnty. v. Javi Leo Maurice Walker, 948 So. 2d 68 (Fla. 3d DCA 2007)
- Nolan Nathaniel Edwards v. City OF ST. Petersburg, 961 So. 2d 1048 (Fla. 2d DCA 2007)
- Norman v. Wyndel G. Darville & Off. of State Attorney, 964 So. 2d 864 (Fla. 2d DCA 2007)
- London v. Baxter Healthcare Corp., 965 So. 2d 307 (Fla. 3d DCA 2007)