GEORGE W. ROWLEY, APPELLANT,
v.
BANKERS UNITED LIFE ASSURANCE COMPANY, APPELLEE
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George W. Rowley appealed the dismissal of his insurance benefits lawsuit. The Florida Court of Appeal reversed the dismissal, finding the trial court abused its discretion in dismissing the case for lack of prosecution when neither the one-year statutory period had expired nor was there evidence of unjustified failure to prosecute.
The trial court abused its discretion in dismissing the action. Dismissal for failure to prosecute was improper because neither the statutory one-year period under Rule 1.420(e) had expired nor was there evidence of unjustified failure by Rowley to diligently prosecute his suit.
[1] A trial court may dismiss an action for failure to prosecute with due diligence, even absent a statutory one-year period of inactivity.
[2] Dismissal of an action for want of prosecution is an abuse of discretion absent a showing of unjustified failure by the plaintiff to diligently prosecute the suit.
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“Dismissal of this cause would have been the appropriate action only in the event of Rowley's unjustified failure to diligently prosecute his suit or as a result of failure to prosecute the action for one year, as provided in Rule 1.420(e) R.C.P.”
Establishes the legal standards under which dismissal for failure to prosecute is proper
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Join FLexlaw to unlock all legal intelligenceRowley filed suit against Bankers United Life Assurance Company for benefits under a major medical expense insurance policy. The defendant denied enti…
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NATHAN, Judge.
George W. Rowley appeals an order dismissing his suit without prejudice. The cause was at issue on Rowley’s complaint for benefits under a major medical expense insurance policy and the answer of the defendant, Bankers United Life Assurance Company denying entitlement thereto. Interrogatories were submitted to the defendant and the answers to same were filed on June 22, 1973, the last date on which action was taken by the parties. On April 25, 1974, the court, sua sponte, entered the following order:
“THIS ACTION will come on for hearing before the court on June 6, 1974 at which time the court will take appropriate action including any of the following as applicable:
1. Enter Judgment, if on default
2. Hold final hearing, if uncontested
3. Dispose of pending motions 4. Schedule pending matters for hearing
5. Set for trial
6. Dismiss without prejudice
* :fc * * * ' *
Note: Affirmative action in writing must be taken prior to hearing date.”
On June 3, 1974, a letter was directed to the trial judge by Rowley pro se, advising that his attorney had withdrawn from the case and that he would act as his own attorney until new counsel was obtained, and requesting leave to file an amended complaint. The hearing was held on June 6, at which time Rowley alleges he was present. On June 17, 1974, the trial judge entered an order of dismissal without prejudice, stating no reason for dismissal in the order. On appeal, Rowley complains that the court erred in entering the order for hearing as it listed six possible actions by the court, and further that the entry of the order of dismissal was improper under the factual situation presented. We agree.
Reviewing the alternatives listed in the order of April 25, 1974, in the context of the instant case, the cause was not appropriate for a default judgment, no motions were pending, and no notice of trial entered so that final hearing could be held. Dismissal of this cause would have been the appropriate action only in the event of Rowley’s unjustified failure to diligently prosecute his suit or as a result of failure to prosecute the action for one year, as provided in Rule 1.420(e) R.C.P. We recognize that irrespective of the statutory one year period the trial court possesses the inherent power to dismiss an action for failure to prosecute with due diligence. State ex rel. Croker v. Chillingworth, 1932, 106 Fla. 323, 143 So. 346, 347. We find it highly commendable for a trial judge to exercise diligence in keeping his dockets current so as to promote the efficient and orderly disposition of the court’s business. However, in this cause, the statutory one-year period had not yet expired so as to warrant dismissal under the rule, and there is no showing in the record of an unjustified failure by Rowley to diligently prosecute his suit. Therefore, there was an abuse of discretion in the exercise of the court’s inherent power to dismiss the action for want of prosecution. See Reddish v. Forlines, Fla.App.1968, 207 So. 2d 703, 708.
Accordingly, the order is reversed and the cause is reinstated.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hahn v. First Nat'l Bank OF Delray Beach, 345 So. 2d 345 (Fla. 4th DCA 1977)…d.2d 142 (1963); McLean v. McLean, 340 So. 2d 493 (Fla. 1st DCA 1976). That power must be sparingly exercised. Palm Shores, Inc. v. Nobles, 149 Fla. 103, 5 So. 2d 52 (1941); Popkin, supra, 213 So. 2d at 448; Rowley v. Bankers United Life Assur. Co., 311 So. 2d 380 (Fla. 3d DCA 1975). In the case before us there was no direct order which sought to speed prosecution of the languishing action. It was therefore error to dismiss the action. REVERSED. CROSS, J., concurs. COBB, WARREN H., Associate Judge, dissent…
Authorities Cited
- State v. Chillingworth, 106 Fla. 323 (Fla. 1932)
- Reddish v. Forlines, 207 So. 2d 703 (Fla. 1st DCA 1968)