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Mitchell v. Coker Fuel Inc.
Citations: 511 So. 2d 344; 12 Fla. L. Weekly 1678; 1987 Fla. App. LEXIS 9300Docket: No. 86-2595
Court: District Court of Appeal of Florida; July 8, 1987; Florida; State Appellate Court
An appeal was filed against a trial court's dismissal of an action for lack of prosecution under Florida Rule of Civil Procedure 1.420(e). The court found that there had been record activity on August 1, 1985, with no further activity until August 11, 1986, when both parties filed documents simultaneously at 7:12 a.m. Appellants submitted a notice for trial, while appellees filed a motion to dismiss for failure to prosecute. The trial judge dismissed the action, citing the precedent of Carter v. DeCarion, concluding that the notice for trial was untimely and did not prevent the dismissal. The appellate court determined that the trial judge's reliance on Carter was erroneous. In Carter, a motion to dismiss was filed before the opposing party could show record activity, which was not the case here as both filings occurred simultaneously. The appellate court noted that Rule 1.420(e) requires a motion to dismiss to be filed before any record activity resumes to justify dismissal. Since the appellees did not demonstrate that their motion was filed prior to the appellants' notice for trial, the dismissal was reversed. The case is remanded for further proceedings, with judges Frank and Lehan concurring.