Summary
In Gelb v. Miranda, 456 So.2d 548 (Fla. 3d DCA 1984), the Third District held that a notice of hearing is sufficient record activity to defeat a motion for lack of prosecution.
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No. 83-2859.
September 25, 1984.
Appeal from the Circuit Court, Dade County, Donald E. Stone, J.
Gelb Spatz and Carl Spatz, Miami, for appellants.
Barney V. Avchen, Hialeah, for appellee.
Before BARKDULL, NESBITT and JORGENSON, JJ.
Gelb and Spatz appeal a final order dismissing their action for failure to prosecute. We reverse.
We are faced again with an interpretation of Florida Rule of Civil Procedure 1.420(e), which, for some reason, both counsel and trial judges appear to have trouble understanding. The interpretation is relatively simple. If sufficient record activity occurs during the one-year period preceding the motion to dismiss for failure to prosecute, then the motion should be denied. Collado v. C C Cattle Co., 415 So.2d 901 (Fla. 3d DCA 1982); Florida East Coast Railway v. Russell, 398 So.2d 949 (Fla. 4th DCA), review denied, 411 So.2d 381 (Fla. 1981); Biscayne Construction Co. v. Metropolitan Dade County, 388 So.2d 329 (Fla. 3d DCA 1980).
Failure to Prosecute. 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 the motion of any interested person, whether a party to the action or not, after reasonable notice of the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or 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 of a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.
Here plaintiff-appellant's notice of hearing on defendant's pending motions was filed only four days before the defendant's motion to dismiss for failure to prosecute. Since a notice of hearing is sufficient record activity to preclude dismissal, Greenwell v. Cuiffo, 415 So.2d 901 (Fla. 3d DCA 1982); Kenet v. Stein, 326 So.2d 36 (Fla. 3d DCA 1976); see generally, Nelson v. Stonewall Insurance Co., 440 So.2d 664, 665 (Fla. 1st DCA 1983) (reviewing a number of cases regarding sufficiency of record activity), the motion to dismiss in this case should have been denied.
Reversed and remanded.