DYCK-O'NEAL, INC., APPELLANT,
v.
LORRIEANN MARTIN, APPELLEE
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Florida appellate court reversed dismissal for lack of prosecution where plaintiff filed two documents within the required sixty-day period, establishing sufficient record activity to preclude dismissal under Florida Rule of Civil Procedure 1.420(e).
Any filing of record during the applicable time frame following a notice of lack of prosecution is sufficient to preclude dismissal, regardless of whether the filing affirmatively moves the case toward resolution on the merits.
[1] Any filing of record during the applicable time frame following notice of lack of prosecution under Florida Rule of Civil Procedure 1.420(e) is sufficient to preclude dis…
Previewing 1 of 1 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“[A]ny filing of record during the applicable time frame is sufficient to preclude dismissal—without regard to a finding that the filing is intended to affirmatively move the case toward resolution on the merits.”
Chemrok Corp. v. Tampa Elec. Co., 71 So. 3d 786, 791 (Fla. 2011), establishing the standard for what constitutes record activity.
Dyck-O'Neal filed a complaint against Martin seeking a deficiency judgment; Martin filed a motion to dismiss or transfer venue; no further action occu…
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Plaintiff, Dyck-O’Neal, Inc., appeals from a final order dismissing its action for lack of prosecution. Dyck-O’Neal filed a complaint against Lorrieann Martin seeking to recover a deficiency judgment. In response, Martin filed a motion to dismiss or transfer venue. No further action was taken for ten months which led the court to issue a notice of lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). The court’s notice provided that the action may be dismissed if no record activity occurred within sixty days following service of the notice.
Within the sixty days, Dyck-O’Neal filed two documents: a notice of substitution of counsel; and a memorandum of law in opposition to Martin’s motion to dismiss or transfer venue. Either of these filings was sufficient to establish record activity within sixty days of service of the notice of lack of prosecution. Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 791 (Fla. 2011) (“[A]ny filing of record during the applicable time frame is sufficient to preclude dismissal—without regard to a finding that the filing is intended to affirmatively move *899the case toward resolution on the merits.”). Therefore, the dismissal was error and must be reversed.
Reversed and remanded.
Ciklin, C.J., and May, J., concur.
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- Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786 (Fla. 2011)