KOPPERS COMPANY, INC., A DELAWARE CORPORATION, PETITIONER,
v.
VICTOIRE DEVELOPMENT CORPORATION, A FLORIDA CORPORATION, ET AL., RESPONDENTS
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The Florida Supreme Court held that Rule 1.420(e) mandates the automatic dismissal of actions in which no affirmative action has been taken for one year, unless good cause is shown. The court reversed the Fourth District's decision allowing a conditional dismissal order, establishing that trial courts lack discretion to grant conditional dismissals when the rule's requirements are met.
The court held that Rule 1.420(e)'s language 'shall be dismissed' is mandatory, not permissive, and trial courts have no discretion to enter a conditional order. When no good cause has been shown, actions inactive for one year must be dismissed unconditionally.
[1] An action may be dismissed for lack of prosecution if no affirmative action has been taken by filing of pleadings, order of court, or otherwise for a period of one year.
[2] A court must dismiss an action for lack of prosecution when no affirmative action has been taken for one year, absent a showing of good cause.
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“[I]f no affirmative action in the prosecution of a cause is taken within a period of one year, upon motion of any interested party, the court has no discretion but to dismiss the action for want of prosecution.”
Establishes the mandatory nature of dismissal under Rule 1.420(e) and the court's reasoning in adopting the First District's prior holding
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Join FLexlaw to unlock all legal intelligenceVictoire Development Corporation filed a complaint against Koppers Company and three co-defendants in October 1968. Koppers was never served with proc…
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CARLTON, Chief Justice:
By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District (261 So. 2d 211), which conflicts with a prior decision of the District Court of Appeal, First District, (Reddish v. Forlines, 207 So. 2d 703) (Fla.App. 1st 1968) on the same point of law. We have jurisdiction pursuant to Fla. Const., Art. V, § 3(b)(3), F.S.A. In October 1968, respondent Victoire Development Corp. filed a complaint against petitioner, Koppers Company, Inc., and three co-defendants, co-respondents here. Koppers was never served with process by Victoire, although co-respondent Palm Beach Woodwork Company filed a cross-claim against Koppers on July 12, 1971. Koppers has responded to the cross-claim, but has taken no action as regards the main suit, and Victoire has taken no action whatsoever as regards Koppers.
Accordingly, Koppers moved to dismiss the original action by Victoire in September 1971 on the grounds that Victoire had never taken any affirmative action against Koppers and was subject to dismissal pursuant to Rule 1.420(e), RCP, 30 F.S.A., which provides:
“All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court or otherwise for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing why the action should remain pending at least five days before the hearing on the motion.” Regardless of any activity in the cross-claim by Palm Beach' Woodwork against Koppers, it cannot be contested that there has been no activity involving Koppers in the main suit at all, over a period of several years. This being the case, Rule 1.-420(e), RCP, is obviously applicable.
The trial judge entered an order which provided:
“This cause was duly presented by counsel after notice, and upon consideration thereof, IT IS ORDERED AND ADJUDGED that the Motion to Dismiss filed by Defendant, KOPPERS COMPANY, INC., (docket entry number 35) shall be granted in the event the Plaintiff does not secure service within twenty (20) days from the date of this Order.”
Koppers appealed to the District Court of Appeal, Fourth District, urging that the trial court erred in rendering a conditional order rather than unconditionally granting the Motion to Dismiss for Lack of Prosecution. The District Court affirmed the trial court, per curiam.
Although the issue is not identical to that of the case sub judice, the District Court of Appeal, First District, laid down the rule in Reddish v. Forlines, supra, that:
“[I]f no affirmative action in the prosecution of a cause is taken within a period of one year, upon motion of any interested party, the court has no discretion but to dismiss the action for want of prosecution.” 207 So. 2d 703 at 705.
Although the Rule we are concerned with was somewhat different at the time Reddish was decided, the difference is not important here. The earlier rule provided for reinstatement of a cause of action within one year upon good cause shown; the present rule provides only that a dismissal may be forestalled on a showing of good cause. Both versions, however, stated that under specific circumstances an action “shall be dismissed.”
The First District Court, in Reddish held that this language was mandatory, not permissive; and we agree. In the instant case, therefore, if no good cause had been shown why the action should have remained pending, it should have been dismissed unconditionally.
Accordingly, the decision of the District Court of Appeal, Fourth District, is quashed and this cause is remanded for further proceedings not inconsistent herewith.
It is so ordered.
ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.
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Cited By (12 total)
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Douglas v. Arneda Eiriksson, 347 So. 2d 1074 (Fla. 1st DCA 1977)…tely says her ability to obtain medical treatment is severely impaired by her financial condition. Where good cause is not shown why an action should remain pending, it should be dismissed. Koppers Company, Inc. v. Victoire Development Corporation, 284 So. 2d 193 (Fla.1973). I would reverse and remand for dismissal by the trial court.…
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Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA 1982)…es of action rather than particular parties to an action, and based upon that decision, we agree with the appellant’s contention. The appellee’s reliance on the supreme court’s holding in the case of Koppers Co., Inc. v. Victoire Development Corp., 284 So. 2d 193 (Fla.1973), is misplaced. A review of that case indicates the court had not acquired jurisdiction over the party who filed the motion to dismiss for failure to prosecute. In the case sub judiee, jurisdiction had been obtained over all of the parties…
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Overseas Dev., Inc. v. Amerifirst Fed. Sav. & Loan Ass'n, 433 So. 2d 587 (Fla. 3d DCA 1983)…ould remain pending.2 The filing of a notice of substitution of counsel and an order entered thereon does not constitute affirmative case activity to preclude such a dismissal.3 ” “1 [footnote omitted] 2. Koppers Co. v. Victoire Development Corp., 284 So. 2d 193 (Fla.1973); Metropolitan Transit Authority v. Porter, 328 So. 2d 573 (Fla. 3d DCA 1976); Crouse-Hinds Co. v. Capellia, 302 So. 2d 800 (Fla. 4th DCA 1974); Karkeet v. Snyder, 275 So. 2d 302 (Fla. 3d DCA 1973); Shalabey v. Memorial Hospital of the Sou…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reddish v. Forlines, 207 So. 2d 703 (Fla. 1st DCA 1968)
- Shinpaugh v. State, 261 So. 2d 211 (Fla. 2d DCA 1972)
- Bankers Life & Cas. Co. v. Canaveral Indian River Groves, Inc., 261 So. 2d 211 (Fla. 4th DCA 1972)