NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MICHAEL A. ROBINSON, )
)
Appellant, )
)
v. ) Case No. 2D17-3383
)
ELLEN MAREK; and TONI JAE HILL, a/k/a )
T.J. HILL HERITAGE HILLS INDUSTRIES, )
LLC, )
)
Appellees. )
)
Opinion filed August 24, 2018.
Appeal from the Circuit Court for Pasco
County; Linda H. Babb, Judge.
Brett Wadsworth of Brett Wadsworth, LC
(deceased), Tampa, for Appellant.
James A. Boyko, Spring Hill, for Appellee
Ellen Marek.
No appearance for remaining Appellee.
MORRIS, Judge.
Michael Robinson appeals an order dismissing an action for lack of
prosecution. We reverse because record activity occurred during the grace period after
the trial court filed its notice of lack of prosecution, thus precluding dismissal for lack of
prosecution.
In 2007, Ellen Marek filed an action against Robinson and two other
defendants for breach of a construction contract. On April 7, 2015, the trial court
granted Robinson's motion for summary judgment and entered summary judgment in
favor of Robinson. On May 6, 2015, Robinson filed a motion for attorney's fees, but it
was never set for hearing. On March 24, 2017, the trial court issued a notice of lack of
prosecution. On May 11, 2017, Robinson filed a notice of hearing on his motion for
attorney's fees. On June 21, 2017, the trial court entered an order dismissing the action
for lack of prosecution, finding that there had been no record activity for over two years.
Robinson appeals the order of dismissal, arguing that the trial court erred
in dismissing Marek's action for lack of prosecution because he filed a notice of hearing
on his pending motion for attorney's fees, which he claims constituted record activity
that precluded dismissal under Florida Rule of Civil Procedure 1.420(e).
Rule 1.420(e) provides as follows:
In 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 10 months, and no
order staying the action has been issued nor stipulation for
stay approved by the court, any interested person, whether a
party to the action or not, the court, or the clerk of the court
may serve notice to all parties that no such activity has
occurred. If no such record activity has occurred within the
10 months immediately preceding the service of such notice,
and no record activity occurs within the 60 days immediately
following the service of such notice, and if no stay was
issued or approved prior to the expiration of such 60-day
period, the action 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 to the
parties, unless a party shows good cause in writing at least 5
-2-
days before the hearing on the motion why the action should
remain pending. Mere inaction for a period of less than 1
year shall not be sufficient cause for dismissal for failure to
prosecute.
(Emphasis added.) "Record activity is defined as the 'filing of pleadings, order of court,
or otherwise.' " Zuppardo v. Dunlap & Moran, P.A.,
186 So. 3d 1067, 1068 (Fla. 2d
DCA 2016) (quoting Fla. R. Civ. P. 1.420(e)). "The test for record activity during the
ten-month period and during the sixty-day grace period is a bright-line rule 'under which
any filing of record is sufficient to preclude dismissal.' "
Id. (quoting Citibank, N.A. v.
Konigsberg,
149 So. 3d 1185, 1186 (Fla. 2d DCA 2014)). Previous interpretations of
the rule required a filing that affirmatively moved the case forward, but there is no longer
a distinction "between active or passive record activity."
Id. (first citing Wilson v.
Salamon,
923 So. 2d 363, 365 (Fla. 2005); then quoting Citibank,
N.A., 149 So. 3d at
1186). The rule requires "only a cursory review of the record" to determine whether
there is record activity.
Id. (quoting Citibank, N.A., 149 So. 3d at 1186); Wilson,
923 So.
2d at 368 ("[T]he rule establishes a bright-line test that will ordinarily require only a
cursory review of the record by a trial court. . . . We find this bright-line rule appealing in
that it establishes a rule that is easy to apply and relieves the trial court and litigants of
the burden of determining and guessing as to whether an activity is merely passive or
active."). This bright-line rule "applies to both time periods set forth" in rule 1.420(e): the
ten-month time period as well as the sixty-day grace period. See Chemrock Corp. v.
Tampa Elec. Co., 71 So. 3d 786, 792 (Fla. 2011).
Here, the trial court provided notice on March 24, 2017, that no activity
had occurred within ten months. Then, on May 11, 2017, Robinson filed a notice of
hearing of his pending motion for attorney's fees. This notice of hearing, filed within the
-3-
sixty-day grace period, constituted "record activity" that was sufficient to avoid dismissal
under rule 1.420(e). See Wilson,
923 So. 2d at 364, 369 (holding that motion for
attorney to appear pro hac vice constituted record activity that prevented dismissal
under rule 1.420(e)); Edwards v. City of St. Petersburg,
961 So. 2d 1048, 1049-50 (Fla.
2d DCA 2007) (holding that "motion for hearing and for witness attendance" filed within
sixty-day grace period constituted record activity preventing dismissal under rule
1.420(e)); Weston TC LLLP v. CNDP Mktg. Inc.,
66 So. 3d 370, 371 (Fla. 4th DCA
2011) (holding that "notice of the absence and unavailability of [plaintiff's] attorney"
constituted record activity under rule 1.420(e)); Lingo Constr. v. Pritts, Inc.,
990 So. 2d
705, 706 (Fla. 4th DCA 2008) (holding that "motion to set a date for arbitration" filed
within sixty-day grace period prevented dismissal under rule 1.420(e)). Therefore, the
trial court erred in dismissing the action for lack of prosecution. Accordingly, we reverse
the order of dismissal.
Reversed and remanded.
LaROSE, C.J., and KELLY, J., Concur.
-4-
