ST. ANNE AIRWAYS CORP., AND J. SHAW WEBB, III, APPELLANTS,
v.
JERRY LAROTONDA, APPELLEE
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St. Anne Airways and J. Shaw Webb III appealed the dismissal of their complaint for failure to prosecute. The court held that a notice of appearance by new counsel, filed after a one-year dormancy period, does not constitute sufficient action to prevent dismissal under Florida Rule of Civil Procedure 1.420(e).
The court held that a notice of appearance by new counsel does not constitute sufficient action under Rule 1.420(e) to prevent dismissal for failure to prosecute. The relevant legal standard is whether the action taken was intended to hasten the suit to judgment.
[1] A notice of appearance filed by counsel, without further action intended to hasten the suit to judgment, is insufficient to preclude dismissal for failure to prosecute un…
[2] A change of attorneys during a one-year dormancy period is generally not considered sufficient action to prevent dismissal for failure to prosecute.
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Join FLexlaw to unlock all legal intelligence“depending on the facts of each case, where an alleged action taken either by the plaintiff or the defendant during the one-year dormancy period is asserted as basis for precluding dismissal pursuant to Rule 1.420(e), the question to be asked is whether or not the act taken was intended to hasten the suit to judgment.”
Establishes the controlling legal standard for what constitutes sufficient action to prevent dismissal for failure to prosecute.
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Join FLexlaw to unlock all legal intelligenceAppellants filed a complaint on July 10, 1972 against Jerry Larotonda. An agreed order on January 22, 1973 gave appellants 60 days to obtain new couns…
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PER CURIAM.
The appellants’ complaint filed on July 10, 1972 against the appellee, Jerry Laro-tonda, was dismissed by the trial court pursuant to RCP 1.420(e).
Appellants seek review of the court’s order arguing that a notice of appearance filed of record by their counsel, after prior counsel had withdrawn from the case, was sufficient action under the rule to preclude a dismissal for failure to prosecute for a period of one year. The order appealed was entered on October 3, 1974 pursuant to a motion to dismiss for failure to prosecute filed by the appellee on July 26, 1974.
Prior to July 26th, the only activity of any nature undertaken within the previous year was a notice of appearance filed by the law firm of Feldman and Abramson on October 9, 1973.
From the record, we also observe that this notice of appearance was filed well after the 60 days given to the appellants by an agreed order entered on January 22, 1973 in which to obtain new counsel, which apparently was also the last record activity taken before the notice of appearance was filed.
Appellants cite several cases for the proposition that the notice of appearance constituted sufficient action within the rule. See, Eastern Elevator, Inc., Fla. 1972, 263 So. 2d 218; Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So. 2d 221; Leverenz v. Schmieder, Fla.App.1974, 294 So. 2d 690; Dukes v. Chemicals, Inc., Fla.App. 1973, 277 So. 2d 298; Mantiega v. City of Miami, Fla.App. 1972, 268 So. 2d 537; and, Rosenfeld v. Glickstein, Fla. App.1967, 200 So. 2d 242.
We have studied each of these cases, and find them distinguishable from this case. The proposition of law for which these cases stand, however, is relevant to the instant case.
That point of law may be stated this way: depending on the facts of each case, where an alleged action taken either by the plaintiff or the defendant during the one-year dormancy period is asserted as basis for precluding dismissal pursuant to Rule 1.420(e), the question to be asked is whether or not the act taken was intended to hasten the suit to judgment.
We find at least three cases which have considered a change of attorneys dur ing the one year dormancy period. See, Florida Power & Light Company v. Gil-man, Fla.App. 1973, 280 So. 2d 15; Miller v. Hartley’s, Inc., Fla.App. 1957, 97 So. 2d 211; Gulf Appliance Distributors, Inc. v. Long, Fla.1951, 53 So. 2d 706. In each case, it was held that such a change is not sufficient action taken under the rule to foreclose dismissal.
Accordingly, the order in this case dismissing the appellants’ complaint for failure to prosecute is affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Bowl Am. Fla., Inc. v. Schmidt, 386 So. 2d 1203 (Fla. 5th DCA 1980)…en cited which directly answer this question. A notice of substitution of counsel and an order thereon is not sufficient to prevent dismissal. Gulf Appliance Distributors, Inc. v. Long, 53 So. 2d 706 (Fla.1950), St. Anne Airways Corp. v. Larontonda, 308 So. 2d 129 (Fla. 3d DCA 1975), and Industrial Trucks of Florida, Inc. v. Gonzales, 351 So. 2d 744 (Fla. 3d DCA 1977). In the case before us, the reassignment of the judge was instituted by the court rather than either party; therefore, the reasons are even mor…
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Murphy White Dairy, Inc. v. Simmons, 405 So. 2d 298 (Fla. 4th DCA 1981)…Stat. (1949),” the predecessor to Florida Rule of Civil Procedure 1.420. While [*300] that case involved change of defense counsel, it was followed in cases involving withdrawal of plaintiffs counsel, see, e. g., St. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3d DCA 1975); Florida Power & Light Company v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973), an action that might very well be calculated to move the case along. It is clear, however, that despite Gulf Appliances’ insistence on “some active measur…
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Overseas Dev., Inc. v. Amerifirst Fed. Sav. & Loan Ass'n, 433 So. 2d 587 (Fla. 3d DCA 1983)…Fla. 4th DCA 1971). See also Little v. Sullivan, 173 So. 2d 135 (Fla.1965); Equity Capital Co. v. 601 West 26 Corp., 223 So. 2d 762 (Fla. 3d DCA 1969); Landfield v. Sherman, 201 So. 2d 819 (Fla. 4th DCA 1967). 2 St. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3d DCA 1975); Florida Power and Light Co. v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973). See also Gulf Appliance Distributors, Inc. v. Long, 53 So. 2d 706 (Fla.1951).” Indeed, it has long been held that a mere passive effort to keep an action o…1 / 2
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Musselman Steel Fabricators, Inc. v. Radziwon, 263 So. 2d 221 (Fla. 1972)
- Lenore Miller v. Hartley's, Inc., 97 So. 2d 211 (Fla. 3d DCA 1957)
- Rosenfeld v. Glickstein, 200 So. 2d 242 (Fla. 1st DCA 1967)
- Glover v. State, 280 So. 2d 15 (Fla. 1st DCA 1973)
- Fla. Power & Light Co. v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973)
- Dukes v. Chems., Inc., 277 So. 2d 298 (Fla. 2d DCA 1973)
- Leverenz v. Schmieder, 294 So. 2d 690 (Fla. 3d DCA 1974)
- Manteiga v. City OF Miami, 268 So. 2d 537 (Fla. 3d DCA 1972)