PHILLIPS PETROLEUM COMPANY, APPELLANT,
v.
ART HEIMER D/B/A ART HEIMER PAINT COMPANY, AND SECURITY INSURANCE COMPANY OF HARTFORD, APPELLEES
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Phillips Petroleum appealed the dismissal of its third-party complaint for indemnity against Art Heimer and Security Insurance Company for failure to prosecute. The court reversed, holding that dismissal under Rule 1.420(e) was unwarranted because another third-party defendant (Consolidated Mutual) had taken affirmative action toward case disposition within the required one-year period.
The trial court's dismissal was unwarranted. Dismissal for failure to prosecute under Rule 1.420(e) was improper because affirmative action taken by Consolidated Mutual (another party to the third-party complaint) within the one-year period was sufficient to avoid dismissal, and Rule 1.420(e) is directed toward dismissal of entire causes of action rather than particular parties to an action.
[1] An action may not be dismissed for failure to prosecute against a defendant if there has been record activity directed toward the disposition of the cause as to another d…
[2] Florida Rule of Civil Procedure 1.420(e) authorizes the dismissal of "actions," not individual parties.
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“It is well settled that action taken on the part of any party which is more than a mere passive effort, i.e., an affirmative act directed toward disposition of the cause, is sufficient to avoid dismissal for failure to prosecute.”
Establishes the legal standard that affirmative action by any party in the case can prevent dismissal for failure to prosecute.
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Join FLexlaw to unlock all legal intelligencePhillips Petroleum was sued in a wrongful death action filed in 1968 and was named as a defendant. In 1974, Phillips filed a third-party complaint aga…
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PER CURIAM.
Phillips Petroleum Company, defendant-third party plaintiff, takes this appeal from an order dismissing its third party complaint for failure to prosecute. The original complaint in this wrongful death action was filed in 1968. Phillips Petroleum was one of the original defendants. In 1974, Phillips filed a third party complaint for indemnity naming as third party defendants Art Heimer d/b/a Art Heimer Paint Company and his two insurers, Security Insurance Company of Hartford and Consolidated Mu tual Insurance Company. Heimer and Security are appellees herein; Consolidated Mutual is not a party to this appeal, but remains in the suit.
On January 20, 1975, following several months of procedural skirmishing, Heimer and Security filed an amended motion to dismiss the third party complaint. No further action was taken by Phillips or by Heimer or Security until January 22, 1976, when Heimer and Security filed a motion to dismiss for lack of prosecution, alleging that the last pleading filed in the suit was their motion of January 20, 1975. Following a hearing, the trial court entered an order dismissing the third party complaint against Heimer and Security for lack of prosecution under Rule 1.420(e), Fla.R. Civ.P. Rule 1.420(e), supra, concerning dismissal of actions for failure to prosecute, provides that an action shall be dismissed where it affirmatively appears that no action has been taken through either the filing of pleadings, order of court or otherwise for a period of one year. The record reflects that although Phillips, Heimer and Security took no action during the one year period, activity of record was initiated during the year by or on behalf of the third party codefend-ant Consolidated; a request to produce was directed toward the original plaintiff, interrogatories were answered, and a motion for summary judgment was filed together with an exhibit and a notice of hearing.
The question posited for consideration in this case is whether Heimer and Security were entitled to dismissal of Phillips’ third party complaint under Rule 1.420(e) where no action was taken by Phillips or third party defendants Heimer and Security for more than one year, although another third party defendant, Consolidated, had taken action within the same period of time. We believe that the dismissal was unwarranted in this instance.
It is well settled that action taken on the part of any party which is more than a mere passive effort, i.e., an affirmative act directed toward disposition of the cause, is sufficient to avoid dismissal for failure to prosecute. Compare Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla.1972), and see Kenet v. Stein, 326 So. 2d 36 (Fla.3rd DCA 1976).
The Florida Rules of Civil Procedure provide for third party practice in order to avoid multiplicity of actions and to allow the entire subject arising from one set of facts to be disposed of in one action. Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So. 2d 836, 840 (Fla.2d DCA 1969). There is no question that there is a proper third party complaint involved herein which should be disposed of along with the original suit. There was affirmative action taken within the required time which was directed toward disposition of the case. Given these facts, and the fact that Rule 1.420(e) is directed toward dismissal of causes of action rather than particular parties to an action, the third party complaint against Heimer and Security should not have been dismissed.
Reversed.
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Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979)…e court cited and approved a holding in Cypress Corp. of Fla. v. Smith, Fla. 2nd DCA 1969, 218 So. 2d 481, that the filing of an Answer by a defendant constitutes prosecution of an action. In Phillips Petroleum Company v. Heimer, Fla. 3rd DCA 1976, 339 So. 2d 284, there was a third-party claim against three third-party defendants. There was no action of record for a period of one year by the third-party plaintiff or two defendants, but the other third-party defendant did file a Request to Produce against the…
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Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990)…; Sittser v. General Motors Corp., 488 So. 2d 577 (Fla. 4th DCA 1986) (sheriff’s return of service is activity); Hale v. Hart Properties, 436 So. 2d 1093 (Fla. 3d DCA 1983) (sheriff's return of service is activity); Phillips Petroleum Co. v. Heimer, 339 So. 2d 284 (Fla. 3d DCA 1976), cert. denied, 348 So. 2d 948 (Fla.1977) (third-party defendant's action is sufficient to avoid dismissal). . Gulf Appliance Distribs. v. Long, 53 So. 2d 706 (Fla.1951). . Barnett Bank of East Polk County v. Fleming, 508 So. 2d…
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Bowman v. Peele, 413 So. 2d 90 (Fla. 2d DCA 1982)…appellant’s complaint. The appellant contends that the rule applies to actions, and not to parties, and therefore the trial court erred in dismissing the appellee. The Third District Court of Appeal in the case of Phillips Petroleum Co. v. Heimer, 339 So. 2d 284 (Fla. 3d DCA 1976), held that the rule is directed towards dismissal of causes 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 cou…
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
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Mims Crane Serv., Inc. v. Insley Mfg. Corp., 226 So. 2d 836 (Fla. 2d DCA 1969)
- Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976)