C. RAVEL, APPELLANT,
v.
M. C. RAVEL, APPELLEE
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In this constructive trust dispute, the Florida District Court of Appeal held that Rule 1.420(e) requiring dismissal for lack of prosecution does not apply to proceedings occurring after entry of a final judgment. The court affirmed the trial court's denial of the appellant's motion to dismiss for lack of prosecution filed nearly 4.5 years after the final judgment was entered.
The rule only requires dismissal of a case where it has not been prosecuted toward final judgment for the requisite period of time. Once final judgment has been entered, the rule no longer applies.
[1] A rule requiring dismissal for lack of prosecution applies only to proceedings occurring before the entry of a final judgment.
[2] Once a final judgment has been entered, a rule requiring dismissal for lack of prosecution no longer applies.
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Join FLexlaw to unlock all legal intelligence“the rule only requires the dismissal of a case where it has not been prosecuted toward final judgment for the requisite period of time. Once final judgment has been entered the rule no longer applies.”
States the holding that Rule 1.420(e) does not apply post-judgment
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Join FLexlaw to unlock all legal intelligenceThe trial court determined that appellant held a one-half interest in real property in constructive trust for appellee. The judgment required appellan…
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GRIMES, Judge.
This appeal involves the question of whether the lack of prosecution contemplated by Rule 1.420(e), RCP, pertains to proceedings occurring subsequent to the entry of a final judgment.
The final judgment determined that appellant, who was the record owner of certain real property, held a one-half interest in constructive trust for appellee. Appellant was directed to file an affidavit setting forth the expenses which he had incurred incident to the acquisition and maintenance of the property and the profits which he had derived from use of the property. Upon the payment to appellant “of one half the net cost, as determined by the court,” the appellant was directed to deed a one-half interest in the property to appellee. The judgment was affirmed by this court on appeal. Thereafter, appellant filed the required affidavit of expenditures and profits. Appellee then filed an objection to certain expense items in the affidavit. No hearing was ever held for the purpose of determining the net cost, and there was no further record activity in the case until appellant filed a motion to dismiss for lack of prosecution some four and one-half years later. Appellant filed an interlocutory appeal from the order denying this motion.
Appellee suggests that sufficient non-record activity directed toward moving the case forward had occurred during the interim so as to come within the “or otherwise” provision of the rule. Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So. 2d 221; Whitney v. Whitney, Fla.App. 2nd 1970, 241 So. 2d 436. We need not reach this point because we hold that the rule only requires the dismissal of a case where it has not been prosecuted toward final judgment for the requisite period of time. Once final judgment has been entered the rule no longer applies. A contrary construction of the rule would appear to have the practical effect of nullifying an otherwise valid judgment. If appellant felt aggrieved because no further proceedings had transpired, he could have always brought matters to a head by setting down a hearing.
Affirmed.
HOBSON, A. C. J., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.
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Frohman v. Bar-Or, 660 So. 2d 633 (Fla. 1995)…d to be applicable to any proceedings after final judgment. Riesgo v. Weinstein, 523 So. 2d 752 (Fla. 2d DCA 1988), disapproved on other grounds, Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366 (Fla.1995); Ravel v. Ravel, 326 So. 2d 223 (Fla. 2d DCA 1976). At the very least, if this rule is to be applied after judgments of mortgage foreclosure, the point from which the one year begins to run should not be the mere reservation of jurisdiction. The rule should only be employed to d…1 / 2
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Riesgo v. Ira Weinstein, 523 So. 2d 752 (Fla. 2d DCA 1988)…s not subject to a motion to dismiss under Rule 1.420(e) because it proceeds from a reservation of jurisdiction by the trial court to resolve a lien for attorney’s [*754] fees subsequent to the entry of a final judgment. We agree. In Ravel v. Ravel, 326 So. 2d 223, 224 (Fla. 2d DCA 1976), we held that “the rule only requires the dismissal of a case which has not been prosecuted toward final judgment for the requisite period of time. Once final judgment has been entered the rule no longer applies.” Even if we…
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Fin. Sec. Sav. & Loan Ass'n v. Espana River P'ship, 537 So. 2d 683 (Fla. 4th DCA 1989)…st DCA 1986), and Withers v. Flagship Peoples Bank of Tallahassee, 473 So. 2d 789 (Fla. 1st DCA 1985). However, several other cases from the Second District Court of Appeal, Riesgo v. Weinstein, 523 So. 2d 752 (Fla. 2d DCA 1988), and Ravel v. Ravel, 326 So. 2d 223 (Fla. 2d DCA 1976), have held that, once final judgment has been entered, rule 1.420(e) does not apply, the rationale being that a contrary construction would have the practical effect of nullifying an otherwise valid judgment. We do not believe th…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Musselman Steel Fabricators, Inc. v. Radziwon, 263 So. 2d 221 (Fla. 1972)
- Whitney v. Whitney, 241 So. 2d 436 (Fla. 2d DCA 1970)