MILU, INC., A FLORIDA CORPORATION, APPELLANT,
v.
DONALD C. DUKE, APPELLEE
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The court held that filing a notice of hearing is sufficient affirmative action to prevent dismissal for want of prosecution under Rule 1.420(e).
The plaintiff's cause of action was dismissed for want of prosecution. The plaintiff had taken action within one year by filing a notice of hearing.…
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Plaintiff appeals from an order of the trial court dismissing his cause of action for want of prosecution, pursuant to the provisions of Rule 1.420(e), R.C.P., 30 F.S. A.
It is apparent from the record that action had been taken within one year by the plaintiff. This action was in the nature of filing a notice of hearing, which was held sufficient to constitute affirmative action by a plaintiff. Scarlett v. Frederick, 147 Fla. 407, 3 So.2d 165; City of Miami v. Railway Express Agency, Inc., Fla.App. 1962, 141 So.2d 285; Knowles v. Gilbert, Fla.App.1968, 208 So.2d 660. Therefore, we find that the court erred in dismissing the cause pursuant to the provisions of the rule.
Appellee contends that notwithstanding the fact that the court may not have been justified in dismissing the matter, under the rule it had an inherent power to dismiss. In this contention we have examined the following: Eaton v. Harrison, 100 Fla. 1668, 132 So. 635; Reddish v. Forlines, Fla.App.1968, 207 So.2d 703; Popkin v. Crispen, Fla.App.1968, 213 So.2d 445; Shalabey v. Memorial Hospital of South Broward Hospital District, Fla.App.1971, 253 So.2d 712, (opinion filed October 27, 1971). Upon a full examination of these authorities and on the record in the instant case, we do not find a sufficient basis to justify the court’s dismissing the cause under its inherent power and, having found it lacked the authority to dismiss it under the rule, we therefore reverse the final judgment of dismissal here under review, with directions to reinstate the plaintiff’s last complaint and cause of action.
Reversed and remanded, with directions.
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Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983)…. 2d 1261 (Fla. 2d DCA 1978) (motion and order to substitute personal representative of deceased party); Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976) (plaintiff’s notice of hearing on motion to dismiss third-party complaint); Milu, Inc. v. Duke, 256 So. 2d 83 (Fla. 3d DCA 1971) (plaintiff’s notice of hearing); Cypress Corp. of Florida v. Smith, 218 So. 2d 481 (Fla. 2d DCA 1969) (filing of answer); City of Miami v. Railway Express Agency Inc., 141 So. 2d 285 (Fla. 3d DCA 1962) (plaintiff’s notice of heari…
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Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976)…rough securing an order of court by noticing a hearing on the third party defendant’s motion to dismiss the third party complaint. See City of Miami v. Railway Express Agency, Inc., Fla.App.1962, 141 So. 2d 285; and Milu, Inc. v. Duke, Fla.App.1971, 256 So. 2d 83. Defendant’s position that because the action affected only the third party complaint, it could not reasonably be interpreted as progressing the cause is not well taken. Until there was some deposition of the third party defendant’s motion to dismis…
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Thomas v. Personal Representative OF the Estate OF Leo Z. DeLOACH, Sr., 400 So. 2d 204 (Fla. 1st DCA 1981)…on to avoid the effect of a motion to dismiss under Rule 1.420(e). Adams Engineering Co. v. Construction Products Corp., 156 So. 2d 497 (Fla.1963); City of Miami v. Railway Express Agency, Inc., 141 So. 2d 285 (Fla. 3d DCA 1962); Milu, Inc. v. Duke, 256 So. 2d 83 (Fla. 3d DCA 1971); Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976). Since the trial judge entered the Notice of Trial within the twelve months prior to the motion to dismiss, the appellee’s motion was prematurely filed and the trial court erred in…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scarlett v. Frederick, 147 Fla. 407 (Fla. 1941)
- Reddish v. Forlines, 207 So. 2d 703 (Fla. 1st DCA 1968)
- Popkin v. Crispen, 213 So. 2d 445 (Fla. 4th DCA 1968)
- Anderson v. State, 141 So. 2d 285 (Fla. 1st DCA 1962)
- COX v. Smith, 253 So. 2d 712 (Fla. 3d DCA 1971)
- Gaddis v. State, 253 So. 2d 712 (Fla. 3d DCA 1971)
- Brunk-Smith Chris Craft, Inc. v. Espenlaub, 208 So. 2d 660 (Fla. 2d DCA 1968)
- Knowles v. Gilbert, 208 So. 2d 660 (Fla. 3d DCA 1968)
- Eaton v. Harrison, 100 Fla. 1668 (Fla. 1931)