SOSHANA DASHEW, APPELLANT,
v.
HY MARKS, APPELLEE
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Plaintiff Dashew appealed the trial court's reinstatement of a dismissed civil action. The appellate court reversed, holding that neither the delay in preparing a written court order nor the general interests of justice constitute valid grounds for reinstating an action dismissed under Florida Rule 1.420(e) for failure to take action within one year.
The court held that neither ground justified reinstatement under Rule 1.420(e). The delay in preparing a written order does not relieve the plaintiff of his duty to proceed, and the general interest of justice in giving the defendant his day in court is not a valid basis for reinstatement contemplated by the rule.
[1] A plaintiff's failure to take action on a case for one year, as required by Rule 1.420(e), Fla.R.Civ.P., warrants dismissal.
[2] A delay in the court's issuance of a written order after an oral ruling does not relieve a plaintiff of the duty to proceed with litigation.
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Join FLexlaw to unlock all legal intelligence“It is plaintiff's responsibility to expedite the litigation commenced by him and ensure the prompt dispatch of the court's business.”
Establishes that plaintiff bears the burden of moving litigation forward and cannot rely on court delays as an excuse for inaction.
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Join FLexlaw to unlock all legal intelligenceThe trial court dismissed the action on May 26, 1977, pursuant to Rule 1.420(e), Fla.R.Civ.P., for failure to take any action by filing pleadings, ord…
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DREW (Ret.), Associate Judge.
On 26 May 1977 the trial court, pursuant to Rule 1.420(e), Fla.R.Civ.P., dismissed this cause for failure to take any action by the filing of pleadings, order of court, or otherwise for one year. Plaintiff moved to rein state the cause, because “the plaintiff was under the impression that the attorney for the defendant was to prepare (an) appropriate order” for the court, reducing to writing the court’s oral rulings on certain motions filed in the cause, but “the order was never prepared and the cause remained dormant awaiting said order” for more than the time allowed by the rule. Further, the defendant alleged he “has a good and valid law suit and in the interests of justice is prepared to proceed to trial upon notice * * * The trial court, after hearing, granted the motion and reinstated the cause, from which order this appeal has been prosecuted. The appellee has not favored this court with a brief.
As to the first ground for reinstatement, the delay of the court in handing down a written order after an oral decision on the pleadings does not relieve the plaintiff of his duty to proceed and does not affect the defendant’s right of dismissal.1 It is plaintiff’s responsibility to expedite the litigation commenced by him and ensure the prompt dispatch of the court’s business.2
The second ground alleged is wholly without merit to warrant reinstatement of an action dismissed under the rule. The court’s determination that the case should be reinstated because the interests of justice would be served by allowing the defendant his day in court finds no support in the reported cases, and is clearly not a basis for reinstatement contemplated by the rule.3
Reversed, with directions to reinstate the order of dismissal.
. Karkeet v. Snyder, 275 So. 2d 302 (Fla. 3rd DCA 1973); Moore v. Gannon, 178 So. 2d 618 (Fla. 3rd DCA 1965).
. Elmer A. Yelvington & Sons, Inc. v. Sheridan, 65 So. 2d 44 (Fla. 1953). Also see: Dobson v. Crews, 164 So. 2d 252 (Fla. 1st DCA 1964).
. Laug v. Murphy, 205 So. 2d 695 (Fla. 4th DCA 1968); Schreyer v. Liniado, 100 So. 2d 199 (Fla. 3rd DCA 1958).
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Sarasota Cattle Co. & Charles E. Early v. Mikos, 431 So. 2d 260 (Fla. 2d DCA 1983)…quiring the court to set a cause for trial. Notwithstanding the subsequent adoption of Rule 1.440(c), the First District continued to adhere to its view in Brennan and Palat-ka. We disagree with that view. Appellee also cites us to Dashew v. Marks, 352 So. 2d 554 (Fla. 3d DCA 1977), in support of his argument. In that case record activity lapsed for over a year due to the trial court’s delay in entering a written order on certain motions filed in the cause. The Third District held that the trial court’s dela…
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Patton v. Kera Tech., Inc., 895 So. 2d 1175 (Fla. 5th DCA 2005)…. See Sewell Masonry Co. v. DCC Const. Inc., 862 So. 2d 893 (Fla. 5th DCA 2003) (noting that “it is not the duty of the trial judge to schedule hearings on motions for parties who do not themselves seek rulings on their pleadings”); Dashew v. Marks, 352 So. 2d 554 (Fla. 3d DCA 1977) (holding that the court’s failure to enter a written order on an oral decision did not relieve plaintiff of the duty to proceed and did not affect the defendant’s right to dismiss the case for lack of prosecution); Bakewell v. She…
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Miami Nat'l Bank v. Leo Greenfield, Leo Greenfield, P.A., 488 So. 2d 559 (Fla. 3d DCA 1986)…itten order disposing of defendants’ latest motion for leave to join an additional party defendant, in accordance with its oral pronouncement, dismissal for failure to prosecute was precluded. Again we agree. This court’s opinion in Dashew v. Marks, 352 So. 2d 554 (Fla. 3d DCA 1977) does not, as defendants suggest, dictate otherwise. In Dashew the complaint was ordered dismissed because plaintiff, “ ‘under the impression that the attorney for the defendant was to prepare (an) appropriate order’ for the court,…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dobson v. Crews, 164 So. 2d 252 (Fla. 1st DCA 1964)
- Laug v. Murphy, 205 So. 2d 695 (Fla. 4th DCA 1968)
- Elmer A. Yelvington & Son, Inc. v. Sheridan et ux., 65 So. 2d 44 (Fla. 1953)
- Moore v. Gannon, 178 So. 2d 618 (Fla. 3d DCA 1965)
- Rollo Karkeet v. Snyder, 275 So. 2d 302 (Fla. 3d DCA 1973)
- Schreyer v. Ely Liniado, 100 So. 2d 199 (Fla. 3d DCA 1958)