MATHEW BAKALA, APPELLANT,
v.
DOROTHY BAKALA, 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.
Mathew Bakala appealed the dismissal of his lawsuit for failure to prosecute. The court reversed the dismissal because Bakala filed a suggestion of death and motion for substitution of party within the sixty-day window required by Florida Rule of Civil Procedure 1.420(e), thus preventing dismissal for lack of prosecution.
The dismissal for failure to prosecute was improper because record activity occurred within sixty days after the notice of lack of prosecution was served, specifically the filing of the suggestion of death and motion for substitution of party, which precluded dismissal under Florida Rule of Civil Procedure 1.420(e).
[1] A lawsuit may not be dismissed for failure to prosecute if record activity occurs within sixty days after a notice of lack of prosecution is served.
[2] Filing a suggestion of death and a motion for substitution of a party constitutes record activity sufficient to preclude dismissal for failure to prosecute.
Previewing 2 of 3 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“Mathew acted within the sixty-day period after the court's notice of potential dismissal by filing the suggestion of death and motion for substitution, thus precluding dismissal for failure to prosecute.”
This quote establishes the key holding that timely filing of the suggestion of death and motion for substitution prevented dismissal under Rule 1.420(e).
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMathew Bakala filed suit in September 2005 to set aside a quitclaim deed transferring his brother Lawrence's real property to joint ownership with his…
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 Showing Of Good Cause cases and more on FLexlaw
Mathew Bakala appeals from the order dismissing his lawsuit for failure to prosecute. We reverse because record activity occurred in the case within sixty days after the notice of lack of prosecution was served, thus precluding dismissal under Florida Rule of Civil Procedure 1.420(e).
On September 16, 2005, Mathew filed an action to set aside a quitclaim deed that transferred real property owned solely by his brother, Lawrence Bakala, to joint ownership with his sister, Dorothy Bakala. Mathew also sought to have Lawrence’s will set aside, alleging that Lawrence was not mentally competent to transfer property or to execute a will. The case proceeded with various filings, and trial was eventually set for March 10, 2008. On January 23, 2008, counsel for Mathew and Dorothy entered into a stipulation to continue trial, and on that same date, the trial court entered an order continuing trial. No further activity occurred in the case until May 28, 2010, when the trial court entered a “Motion and Notice and Judgment of Dismissal” requiring Mathew to show good cause at least five days before the hearing date of July 30, 2010, why the action should not be dismissed for lack of prosecution.
On July 22, 2010, eight days before the scheduled hearing, Mathew filed his showing of good cause in which he stated that Dorothy had died on May 30, 2010, that her estate had been opened in the probate court, and that he intended to file a sug-*424gestión of death and to request the substitution of the personal representative of the estate as party respondent in this action. On July 26, 2010, as promised in the showing of good cause, Mathew filed a suggestion of death and a motion for substitution of party. Following the hearing on July 30, 2010, on the trial court’s notice of potential dismissal, the trial court dismissed the case with prejudice. This was error. Mathew acted within the sixty-day period after the court’s notice of potential dismissal by filing the suggestion of death and motion for substitution, thus precluding dismissal for failure to prosecute. See Fla. R. Civ. P. 1.420(e); Mickens v. Damron, 1 So.3d 1160 (Fla. 2d DCA 2009); Edwards v. City of St. Petersburg, 961 So.2d 1048 (Fla. 2d DCA 2007). Accordingly, we reverse and remand for further proceedings.
Reversed and remanded.
WHATLEY and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Weston TC LLLP v. CNDP Mktg. Inc., 66 So. 3d 370 (Fla. 4th DCA 2011)…d so difficult prior to Wilson. Based on the foregoing, Weston’s January 19 filing was sufficient to avoid dismissal under Rule 1.420(e). Reversed. POLEN, J., concurs. DAMOORGIAN, J., concurs specially with opinion. . See also Bakala 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…
Authorities Cited
- Zachery v. State, 961 So. 2d 1048 (Fla. 2d DCA 2007)
- Nolan Nathaniel Edwards v. City OF ST. Petersburg, 961 So. 2d 1048 (Fla. 2d DCA 2007)
- Mickens v. Damron, 1 So. 3d 1160 (Fla. 2d DCA 2009)