Alech v. General Ins. Co., 85-2513
Decision Date | 22 July 1986 |
Docket Number | No. 85-2513,85-2513 |
Citation | 11 Fla. L. Weekly 1596,491 So.2d 337 |
Parties | 11 Fla. L. Weekly 1596 Aleida ALECH, Appellant, v. GENERAL INSURANCE COMPANY, Appellee. |
Court | Florida District Court of Appeals |
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) () . 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.
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