MORTON M. BEIGEL, APPELLANT,
v.
EDWIN O. SIMON, AS CURATOR OF THE ESTATE OF MORRIS KURZWEIL, DECEASED, APPELLEE
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The Florida District Court of Appeal reversed a trial court's dismissal of a civil lawsuit for lack of prosecution, holding that the plaintiff's filing of a notice of trial before the dismissal motion constituted sufficient affirmative action to prevent dismissal under Rule 1.420(e).
The court held that filing a notice of trial is a step in the prosecution of the cause and constitutes affirmative action sufficient to prevent dismissal for lack of prosecution, particularly when filed before any motion to dismiss is made.
“In the absence of a showing that the act of noticing the motion for hearing was not a step taken in good faith to prosecute or progress the cause, it was sufficient, when done before the motion to dismiss for want of prosecution, to protect against dismissal.”
Establishes that affirmative action taken before a dismissal motion protects against dismissal for want of prosecution.
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Join FLexlaw to unlock all legal intelligenceAppellant Beigel initiated a complaint against appellee Simon as curator of an estate. Appellee filed an answer on January 12, 1966. No further action…
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This is an appeal from an order of dismissal for lack of prosecution and from an order denying a petition for reinstatement, both of which were entered pursuant to Rule 1.420(e), Florida Rules of Civil Procedure, 30 F.S.A.
The cause was initiated upon appellant’s complaint, to which appellee filed answer on January 12, 1966. No further action was taken until January 27, 1967, at which time appellant filed a notice of trial as provided for by Rule 1.440(b), Florida Rules of Civil Procedure, 30 F.S.A. However, the trial *474court, upon its own motion, entered an order on February 2, 1967, which recited that the cause was thereby dismissed pursuant to § 45.19, Fla.Stat., F.S.A. (Superseded by Rule 1.420(e), Florida Rules of Civil Procedure, supra). Appellant’s subsequent petition to reinstate the cause was denied by the lower court’s order of May 9, 1967, whereupon the instant appeal was taken. We find that the trial court committed error in dismissing the cause.
This case is closely analogous to the case of City of Miami v. Railway Express Agency, Inc., Fla.App.1962, 141 So.2d 285, wherein the trial court had dismissed the action pursuant to § 45.19, Fla.Stat., supra. Under the facts as set out in the opinion, there had been no pleadings filed nor affirmative action taken toward prosecution for over a year. The plaintiff then requested the clerk to redocket the case for jury trial and set hearing dates for motions which had been pending prior to the year hiatus. Four days later, the defendants moved to dismiss for lack of prosecution, which motion was granted. Upon appeal to this court, the order was reversed. The opinion states, at page 287:
“In the absence of a showing that the act of noticing the motion for hearing was not a step taken in good faith to prosecute or progress the cause, it was sufficient, when done before the motion to dismiss for want of prosecution, to protect against dismissal.”
The rationale behind the decision in the Railway Express case, supra, is further explained by the premise adopted therein that the statute (in this case, Rule) providing for dismissal for want of prosecution is not self-executing, but requires a moving party to seek dismissal prior to resumption of affirmative action toward prosecution of the case. Pollock v. Pollock, Fla.1959, 116 So.2d 761.
The only remaining question is whether the filing of the “Trial Notice” constitutes such affirmative action toward prosecution of the cause as will prevent dismissal. In this connection, we rely upon the case of Ferrara v. Coyle Beverages, Inc., Fla.App.1963, 156 So.2d 907, wherein a written notice of trial and praecipe for docketing was held to be a “step in the prosecution of the cause.” See also: Beck v. Humkey, Fla.App.1962, 146 So.2d 613.
Having concluded that it was error to have dismissed the cause, we find it unnecessary to discuss appellant’s contentions regarding denial of the petition for reinstatement. Accordingly, the order appealed is reversed and the case remanded with instructions to reinstate the cause.
Reversed and remanded.
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Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla. 1972)…tep taken in good faith . . . , it was sufficient, when done before the motion to dismiss for want of prosecution, to protect against dismissal.” (Emphasis supplied) Accord, Knowles v. Gilbert, 208 So. 2d 660 (Fla.App.3rd, 1968) and Beigel v. Simon, 210 So. 2d 473 (Fla.App. 3rd, 1968). .The complete series of procedural maneuvers at the trial level may thus be summarized as follows: 1. June 30, 1969: Continuance granted because of illness of plaintiff. 2. Sometime between July 1, 1970 and July 17, 1970:…
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Fund Ins. Cos. v. Sid Preskitt, 231 So. 2d 866 (Fla. 4th DCA 1970)…o defending an active cause of action.” . Pollack v. Pollack, Fla.App.1959, 110 So. 2d 474 (cert. den. Fla.1959, 116 So. 2d 761), construing F.S. 45.19(1), F.S.A. which contained similar wording as F.R.O.P. 1.420(e) ; Beigel v. Simon, Fla.App.1968, 210 So. 2d 473. . Passio v. Crowell, Fla.App.1968, 208 So. 2d 877. . F.A.R. 3.2 subd. b, 4.2, subd. b, 1962 revision, 32 F.S.A., effective through September 30, 1968.…
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Kinsey v. Skyline Corp. & Commercial Union Ins. Co. & Fam. Mart Store # 017 & Ideal Mut. Ins. Co., 395 So. 2d 626 (Fla. 1st DCA 1981)…ly, we hold that the claimant’s action in filing the application for hearing more than two years after the August 9, 1977, claim prevented dismissal on the employer/cárrier’s subsequent motion to dismiss for lack of prosecution. See Beigel v. Simon, 210 So. 2d 473 (Fla. 3rd DCA 1968). See also City of Jacksonville v. Hinson, 202 So. 2d 806 (Fla. 1st DCA 1967), cert. denied 207 So. 2d 688 (Fla.1967). Reversed and remanded for further proceedings consistent with this opinion. SHIVERS and WENTWORTH, JJ., concu…
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
- Pollock v. Hymie Pollack and Sara Pollack, 116 So. 2d 761 (Fla. 1959)
- Anderson v. State, 141 So. 2d 285 (Fla. 1st DCA 1962)
- Gerhard T. Beck and Eva Carol Beck v. Humkey, 146 So. 2d 613 (Fla. 1st DCA 1962)
- Ferrara v. Coyle Beverages, Inc., 156 So. 2d 907 (Fla. 3d DCA 1963)