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Alech v. General Ins. Co.

District Court of Appeal of Florida, Third District
Jul 22, 1986
491 So. 2d 337 (Fla. Dist. Ct. App. 1986)

Summary

concluding that "a notice of or motion for trial filed at a time when the case is not at issue, as here, is a nullity and does not constitute proper record activity sufficient to defeat an otherwise valid motion to dismiss for lack of prosecution under Fla. R. Civ. P. 1.420(e)."

Summary of this case from National Enter. v. Foodtech Hialeah

Opinion

No. 85-2513.

July 22, 1986.

Appeal from the Circuit Court, Dade County, Martin Greenbaum, J.

Powers Moran and Vivian Moran, Miami, for appellant.

Magill Lewis and R. Fred Lewis, Miami, for appellee.

Before HUBBART and BASKIN and DANIEL S. PEARSON, JJ.


The final order dismissing the plaintiff Aleida Alech's action below for lack of prosecution under Fla.R.Civ.P. 1.420(e) is affirmed. We reach this result based on the following briefly stated legal analysis.

First, there was, without dispute, no record activity for more than one year prior to the filing of the trial court's sua sponte motion to dismiss for lack of prosecution, other than a motion for trial filed by the plaintiff Aleida Alech on June 1, 1984. Second, absent this pleading, the trial court was otherwise required to dismiss this action for lack of prosecution under Fla.R.Civ.P. 1.420(e). Third, at the time the aforesaid motion for trial was filed, there was an undisposed-of defense motion to strike the plaintiff's punitive damages claim [and paragraphs 25, 27, and 28 of the complaint] contained in the defendant's answer, and, accordingly, the case was not at issue. See Leeds v. C.C. Chemical Corp., 280 So.2d 718, 719 (Fla. 3d DCA 1973) ("The determinative question is whether a cause is at issue where, with the last responsive pleading required under the rules, there also is simultaneously filed a motion to strike all or part of the pleading to which such responsive pleading is directed. Upon resolving the arguments of the parties relating thereto, we hold that the cause is not at issue while such motions directed to pleadings remain undisposed of. In holding to the contrary the trial court was incorrect."). Fourth, a notice of or motion for trial filed at a time when the case is not at issue, as here, is a nullity and does not constitute proper record activity sufficient to defeat an otherwise valid motion to dismiss for lack of prosecution under Fla.R. Civ.P. 1.420(e). General Guaranty Insurance Co. v. Bolivar, 460 So.2d 1011, 1012 (Fla. 2d DCA 1984), distinguishing Mikos v. Sarasota Cattle Co., 453 So.2d 402 (Fla. 1984).

Affirmed.


Summaries of

Alech v. General Ins. Co.

District Court of Appeal of Florida, Third District
Jul 22, 1986
491 So. 2d 337 (Fla. Dist. Ct. App. 1986)

concluding that "a notice of or motion for trial filed at a time when the case is not at issue, as here, is a nullity and does not constitute proper record activity sufficient to defeat an otherwise valid motion to dismiss for lack of prosecution under Fla. R. Civ. P. 1.420(e)."

Summary of this case from National Enter. v. Foodtech Hialeah

In Alech, plaintiff filed a notice of trial prematurely, while in Buss the plaintiff filed an unnecessary reply to an affirmative defense.

Summary of this case from National v. Foodtech Hialeah

In Alech, we held that where there had been no record activity for more than a year and the plaintiff noticed the case for trial when the case was not yet at issue, there was insufficient record activity to defeat a motion to dismiss for failure to prosecute.

Summary of this case from National Enter. v. Foodtech Hialeah
Case details for

Alech v. General Ins. Co.

Case Details

Full title:ALEIDA ALECH, APPELLANT, v. GENERAL INSURANCE COMPANY, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: Jul 22, 1986

Citations

491 So. 2d 337 (Fla. Dist. Ct. App. 1986)

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