ARTHUR VAN GORDER ET AL., APPELLANTS,
v.
BLANK (R) CONSTRUCTION CORPORATION ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Van Gorders failed to provide written proof of good cause to prevent dismissal of their civil case for lack of prosecution under Florida Rule of Civil Procedure 1.420(e), after the case had been removed from the trial calendar pending a Supreme Court decision. The court affirmed the trial court's dismissal, holding that evidence of nonrecord activity presented at the hearing and in a petition for rehearing was too late to satisfy the rule's requirement for written showing at least five days before the motion hearing.
The court held that the Van Gorders failed to satisfy the rule's requirements because any written showing of cause must be submitted at least five days before the hearing on the motion to dismiss, not in a petition for rehearing filed after the trial court's decision. The oral recitation of nonrecord activity at the hearing itself was insufficient to meet the rule's express requirement for written proof.
[1] An action may be dismissed for lack of prosecution if no action has been taken for a period of one year, unless good cause is shown in writing why the action should remai…
[2] Showing good cause in writing after the hearing on a motion to dismiss for lack of prosecution is too late to prevent dismissal.
Previewing 2 of 3 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“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 of 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.”
The controlling rule establishing the requirement for written proof of good cause at least five days before the hearing, which the appellants failed to meet.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiffs Arthur and Shirley Van Gorder had their case removed from the trial calendar by court order to await a Florida Supreme Court decision on a …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Good Cause For Pending Action cases and more on FLexlaw
DOWNEY, Judge.
Appellants, Arthur and Shirley Van Gorder, were plaintiffs in the trial court and appellees, Blank (R) Construction Corporation and Curcie Brothers, Inc., were defendants. After the case had been set for trial it was removed from the trial calendar by court order to await a decision of the Supreme Court involving a controlling issue. The order stated that the case “shall be reset or otherwise disposed of in accordance with the decision of the Florida Supreme Court or other Florida Appellate Court.”
More than nineteen months after the decision of the Supreme Court had been published each of the defendant-appellees filed a motion to dismiss the cause for lack of prosecution. Thereupon appellants immediately filed a notice of trial and scheduled a deposition. At the hearing on the motions to dismiss counsel for appellants orally advised the court of some “nonrecord activity” which occurred during the one year period. However, after the hearing the court entered orders granting the motions to dismiss. Appellants thereafter filed a petition for rehearing and attached written evidence of the alleged nonrecord activity. The petition for rehearing was denied.
Florida Rule of Civil Procedure 1.420(e) provides:
Failure to Prosecute. 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 of 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.
The rule requires that appellants make some affirmative showing of activity which would justify denial of the motion. See Newman v. Bennefeld, 193 So. 2d 482 (Fla.2d DCA 1967). It is clear from this record that appellants did not show “good cause in writing why the action should re main pending at least five days before the hearing on the motion.” If appellants ever showed any cause in writing it was in their petition for rehearing, which showing comes too late. Curry Corporation v. Greenfield, 235 So. 2d 49 (Fla.3d DCA 1970).
The appellants have failed to demonstrate error. The orders appealed from are therefore affirmed.
MAGER, C. J., and CROSS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
PAN Am. Bank OF Dade Cnty. v. Cont'l Cas. Co. & Advance Indus. Sec., Inc., 349 So. 2d 761 (Fla. 3d DCA 1977)…e v. Williams, 222 So. 2d 477 (Fla. 3rd D.C.A. 1969); Curry Corporation v. Greenfield, 235 So. 2d 49 (Fla. 3rd D.C.A. 1970); Nicholson v. Eli Lilly and Company, 285 So. 2d 648 (Fla. 3rd D.C.A. 1973); Van Gorder v. Blank (R) Construction Corporation, 341 So. 2d 1003 (Fla. 4th D.C.A. 1976).…
-
Warner v. M.L. Winner, 450 So. 2d 878 (Fla. 3d DCA 1984)…(Fla. 3d DCA 1977); Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So. 2d 744 (Fla. 3d DCA 1977); Douglas v. Eiriksson, 347 So. 2d 1074 (Fla. 1st DCA), cert. denied, 353 So. 2d 674 (Fla.1977); Van Gorder v. Blank (R) Construc [*880] tion Corp., 341 So. 2d 1003 (Fla. 4th DCA 1976), cert. denied, 354 So. 2d 987 (Fla.1978). See generally Elmer A. Yelvington & Son, Inc. v. Sheridan, 65 So. 2d 44 (Fla.1953). Affirmed.…
-
Brown v. Morella, 371 So. 2d 571 (Fla. 4th DCA 1979)…and served less than three days before the hearing on the motion to dismiss. 3. That the statute of limitations would bar the refiling of the suit. In my opinion this motion was both insufficient and untimely. Van Gorder v. Blank (R) Const. Corp., 341 So. 2d 1003 (Fla. 4th DCA 1977). If we assume that a petition for rehearing was authorized1 under the rules, the petition here was untimely as more than ten days had passed since dismissal. Appel-lees-respondents contend the petition was really a motion under…
Authorities Cited
- Newman v. Harold and Mabel E. Bennefeld, 193 So. 2d 482 (Fla. 2d DCA 1967)
- Curry Corp. v. Greenfield, 235 So. 2d 49 (Fla. 3d DCA 1970)
- Rec. Corp. OF Am. v. Jack Drury & Assocs., Inc., 235 So. 2d 49 (Fla. 4th DCA 1970)