LEO HENZEL, APPELLANT,
v.
EDWIN GOLSTEIN AND S.W.F.P. COMPANY, A FLORIDA CORPORATION, APPELLEES
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Leo Henzel appealed the dismissal of his action for lack of prosecution. The court reversed the dismissal because Henzel was given inadequate notice (one working day instead of the required five working days) for the hearing on the motion to dismiss for lack of prosecution.
The trial court's dismissal order was improper because Florida Rule of Civil Procedure 1.420(e) requires that a party receive sufficient notice (at least five working days) before a hearing on a motion to dismiss for lack of prosecution to allow them to file a written pleading showing good cause why the action should remain pending. One working day's notice was clearly inadequate.
[1] A trial court order dismissing an action for lack of prosecution will be reversed if the party opposing dismissal received inadequate notice of the hearing on the motion.
[2] Florida Rule of Civil Procedure 1.420(e) requires that a party have at least five working days' notice of a hearing on a motion to dismiss for lack of prosecution to allo…
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Join FLexlaw to unlock all legal intelligence“Fla.R.Civ.P. 1.420(e) contemplates that a party should have sufficient notice for a hearing on an adverse motion to dismiss for lack of prosecution to allow him to file a written pleading no later than five working days before such hearing showing good cause why the action should remain pending.”
Establishes the mandatory notice requirement for dismissal motions
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Join FLexlaw to unlock all legal intelligenceAn action was filed by Henzel against Edwin Golstein and S.W.F.P. Company. The defendants filed a motion to dismiss the action for lack of prosecution…
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HUBBART, Judge.
By this appeal we are asked to review a trial court order dismissing an action for lack of prosecution. The appellant contends that he was given inadequate notice for the hearing on the appellee’s motion to dismiss the action for lack of prosecution. We agree and reverse.
Fla.R.Civ.P. 1.420(e)1 contemplates that a party should have sufficient notice for a hearing on an adverse motion to dismiss for lack of prosecution to allow him to file a written pleading no later than five working days2 before such hearing showing good cause why the action should remain pending. In the instant case, the appellant had only one working day’s notice prior to the hearing on the motion to dismiss, which notice was clearly inadequate. We, accordingly, reverse the order of dismissal and remand the cause to the trial court for further proceedings.
Reversed and remanded.
. “All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on 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, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.” Fla.R. Civ.P. 1.420(e).
. “In computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.” Fla.R.Civ.P. 1.090(a).
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J.B. v. Fla. Dep't of Child. & Fam. Servs., 768 So. 2d 1060 (Fla. 2000)…ly. WELLS, C.J., dissents with an opinion, in which SHAW, J., concurs. PARIENTE, J., dissents with an opinion. . See Harreld v. Harreld, 682 So. 2d 635 (Fla. 2d DCA 1996); Montgomery v. Cribb, 484 So. 2d 73 (Fla. 2d DCA 1986); Henzel v. Golstein, 349 So. 2d 824 (Fla. 3d DCA 1977); Reynolds v. Reynolds, 187 So. 2d 372 (Fla. 2d DCA 1966). . Specifically, section 39.462(l)(a) requires: The document containing the notice to respond or appear must contain, in type at least as large as the balance of the docum…1 / 2
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Crepage v. City OF Lauderhill, 774 So. 2d 61 (Fla. 4th DCA 2000)…in contempt was not notice given a “reasonable time” prior to hearing); Anderson v. Sun Trust Bank/North, 679 So. 2d 307 (Fla. 5th DCA 1996)(four days notice of hearing not sufficient for an award of guardianship fees and costs); Henzel v. Golstein, 349 So. 2d 824 (Fla. 3d DCA 1977)(one working day’s notice of hearing on motion to dismiss inadequate). See also Reynolds v. Reynolds, 187 So. 2d 372, 373 (Fla. 2d DCA 1966)(one day notice of hearing on order to show cause constitutes due process violation). In a…
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Modellista de Europa (Corp.) v. Redpath Inv. Corp., 714 So. 2d 1098 (Fla. 4th DCA 1998)…hearing deprived appellant of the opportunity to show good cause in writing at least five days prior to the hearing as required by the rule. There is no question but that appellees’ tactics deprived appellant of that opportunity. Henzel v. Golstein, 349 So. 2d 824 (Fla. 3d DCA 1977). Such practice should be discouraged.4 Notwithstanding that plaintiff’s counsel was given insufficient notice of the hearing, we find that appellant suffered no prejudice. At the hearing the court allowed appellant’s counsel to pr…1 / 2
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