RUTH HARRIS, APPELLANT,
v.
RAYMOND WILLIAM FILMON, APPELLEE
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The court held that a dismissal for failure to prosecute without prior notice or hearing is improper.
Appellant filed a complaint, obtained a jury verdict, and moved for a new trial. Months later, the trial court dismissed the case with prejudice for f…
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RYDER, Judge.
This is an appeal from a dismissal of an action for failure to prosecute. Appellant contends the dismissal was improper because she was not afforded prior notice or hearing. We agree and reverse.
On January 10, 1973 appellant and her husband filed a complaint against appellee for damages arising out of an automobile accident. The case eventually went to trial and the jury returned a verdict in favor of appellant on May 3, 1976. The appellant, on May 7,1976, filed a motion for new trial alleging the damages awarded were grossly inadequate. This motion was denied on June 30, 1976. Months later, on November 2, 1977, without prior notice or hearing thereon, the trial court dismissed the case with prejudice.
Fla.R.Civ.P. 1.420(e) requires notice and a hearing before a case can be dismissed for failure to prosecute. Since the trial court afforded appellant neither notice nor hearing, its order dismissing the case was improper and must be reversed. See Franklin Acceptance Corp. v. Superior Electrical Industries, Inc., 167 So. 2d 116 (Fla.3d DCA 1964).
REVERSED and REMANDED for further proceedings not inconsistent with this opinion.
BOARDMAN, C. J., and DANAHY, J., concur.
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Fla. E. Coast Ry. Co. v. Russell, 398 So. 2d 949 (Fla. 4th DCA 1981)…e that either an interested party, or the trial court on its own motion, may move to dismiss an action under the rule, it is equally clear that the rule contemplates notice and a hearing prior to a determination by the trial court. Harris v. Filmon, 358 So. 2d 905 (Fla. 2nd DCA 1978); Fields v. Fields, 291 So. 2d 663 (Fla. 1st DCA 1974). The clerk’s notice did not set a hearing date in its letter of August 11th or at anytime thereafter, nor did it advise the appellee of the five day requirement. Even assuming…
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Metro Obras, Inc. v. Fed. Deposit Ins. Corp., 611 So. 2d 1356 (Fla. 3d DCA 1993)…PER CURIAM. In the order now under review, the trial court set aside a dismissal for lack of prosecution on the ground that the plaintiff had not been given appropriate notice. See Harris v. Filmon, 358 So. 2d 905 (Fla. 2d DCA 1978). This order was properly entered pursuant to Fla.R.Civ.P. 1.540(b) and is therefore affirmed. Kanecke v. Lennar Homes, Inc., 543 So. 2d 784 (Fla. 3d DCA 1989); Falkner v. AmeriFirst Fed. Sav. & Loan Ass’n, 489 So. 2d 758 (Fla. 3d…
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Carter v. Pino, 139 So. 3d 457 (Fla. 3d DCA 2014)…d L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA 1982); Alexis v. Fla. Ins. Guar. Ass'n, 61 So. 3d 487 (Fla. 4th DCA 2011); Viets v. Am. Recruiters Enters. Inc., 922 So. 2d 1090 (Fla. [*458] 4th DCA 2006); Harris v. Filmon, 358 So. 2d 905 (Fla. 2d DCA 1978).…
Authorities Cited
- Franklin Acceptance Corp. v. Superior Elec. Indus., Inc., 167 So. 2d 116 (Fla. 3d DCA 1964)