PETER R. EHRLICH, JR.
v.
TIMOTHY M. HOGLE, ET AL.
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A dismissal for lack of prosecution under Florida Rule of Civil Procedure 1.420(e) is improper when any filing of record occurs within the sixty-day period following service of a notice of lack of prosecution, regardless of whether the filing is intended to move the case toward resolution on the merits.
[1] Under Florida Rule of Civil Procedure 1.420(e), a dismissal for lack of prosecution is improper if any filing of record occurs within the sixty-day period immediately fol…
[2] The bright-line rule for record activity under Rule 1.420(e) requires only a mechanical review of the docket and does not distinguish between active and passive record ac…
Previewing 2 of 4 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“The Florida Supreme Court held that rule 1.420(e) sets forth a bright-line rule for record activity—'any filing of record' within either the ten months immediately preceding the service of a notice of lack of prosecution or the sixty-day period following the service of the notice of lack of prosecution suffices to preclude dismissal for lack of prosecution.”
Establishes the bright-line rule that any filing of record within the applicable time periods prevents dismissal for lack of prosecution.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEhrlich filed a complaint against Hogle and others. The trial court served a notice of lack of prosecution (FWOP notice) on the parties. Within the si…
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Third District Court of Appeal State of Florida
Opinion filed July 31, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-1914 Lower Tribunal No. 21-9917 ________________
Peter R. Ehrlich, Jr., Appellant,
vs.
Timothy M. Hogle, et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Carlos Guzman, Judge.
Kluger, Kaplan, Silverman, Katzen & Levine, P.L., and Marko F. Cerenko and Becky N. Saka, for appellant.
Martinez Morales, and Raul Morales and Angela Bousalis, for appellees.
Before EMAS, SCALES and BOKOR, JJ.
EMAS, J.
2
ON CONFESSION OF ERROR
Peter R. Ehrlich, Jr., appeals from an order dismissing his complaint with prejudice for lack of prosecution. Appellees commendably concede1 (and upon our independent review we agree) that the trial court erred in dismissing the action, given that there was record activity within the sixty days immediately following service of the FWOP (“For Want of Prosecution”) notice. We review such an issue de novo. See, e.g., Citibank, N.A. v. Konisberg, 149 So. 3d 1185, 1185-86 (Fla. 2d DCA 2014) (“The issue of whether record activity has occurred within the meaning of rule 1.420(e) is subject to de novo review because it involves the construction of a procedural issue.”) (internal quotation omitted); Weston TC LLLP v. CNDP Mktg. Inc., 66 So. 3d 370, 371-72 (Fla. 4th DCA 2011) (“Whether there has been ‘record activity’ within the meaning of Rule 1.420(e) is a question of law reviewed de novo, as it involves the construction of a procedural rule.”) Florida Rule of Civil Procedure 1.420(e) provides in pertinent part: 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 . . . the court, or the clerk of the court may
3 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 . . . the action shall be dismissed by the court on its own motion . . . after reasonable notice to the parties.
As this court noted in Energy Smart Indus., LLC v. Millennium Condo. Ass’n, Inc., 314 So. 3d 519, 522 (Fla. 3d DCA 2020), the application of this rule is simple and straightforward: The Florida Supreme Court held that rule 1.420(e) sets forth a bright-line rule for record activity—“any filing of record” within either the ten months immediately preceding the service of a notice of lack of prosecution or the sixty-day period following the service of the notice of lack of prosecution suffices to preclude dismissal for lack of prosecution. Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 792 (Fla. 2011). The application of this bright-line rule is considered “mechanical” and “consists of a review of the docket.” Waldeck [v. McDougall], 300 So. 3d 1218, 1219 (Fla. 4th DCA 2020).
Within the sixty-day period, Ehrlich filed a notice of hearing on a motion to withdraw filed by appellees’ counsel. This satisfied the “record activity” requirement of rule 1.420(e), thus precluding dismissal for lack of prosecution. Waldeck, 300 So. 3d at 1219 (“There is no factual dispute. There was record activity within the sixty-day period after notice of lack of prosecution. . . . The record activity consisted of a motion to stay and a notice of hearing on the motion to stay. Either one constitutes record activity under the bright-line test required by the plain language of the rule.”); NRG Inv.
2 Though not necessary to our decision, we note that the order dismissing for lack of prosecution was entered with prejudice. This too was error. See Abu-Hamdeh ex rel. Abu-Hamdeh v. Romero-Bolumen, 889 So. 2d 879, 880 n.1 (Fla. 3d DCA 2004) (“A dismissal for failure to prosecute may not be entered with prejudice”) (citing Gold Coast Graphics, Inc. v. Rachline, 448
Reversed and remanded.
So. 2d 544 (Fla. 3d DCA 1984) and McDaniel v. Onkey, 422 So. 2d 70 (Fla. 2d DCA 1982)).
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Citator
Authorities Cited
- Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786 (Fla. 2011)
- Weston TC LLLP v. CNDP Mktg. Inc., 66 So. 3d 370 (Fla. 4th DCA 2011)
- Citibank, N.A. v. Seymour Konigsberg & Mortg. Elec. Registration Sys., 149 So. 3d 1185 (Fla. 2d DCA 2014)
- Woodson McDANIEL v. Onkey, 422 So. 2d 70 (Fla. 2d DCA 1982)
- Zuppardo v. Dunlap & Moran, P.A., 186 So. 3d 1067 (Fla. 2d DCA 2016)
- Waldeck v. Macdougall, 300 So. 3d 1218 (Fla. 4th DCA 2020)
- Energy Smart Indus., LLC v. Millennium Condo. Ass'n, Inc., 314 So. 3d 519 (Fla. 3d DCA 2020)
- Rime Abu-Hamdeh v. Ileana Romero-Bolumen, M.D., 889 So. 2d 879 (Fla. 3d DCA 2004)
- NRG Inv. P'rs, LLC v. MDC 6, LLC, 266 So. 3d 236 (Fla. 2d DCA 2019)