Bair v. Palm Beach Newspapers, Inc., 79-849

• Decision Date: 03 September 1980
• Docket Number: No. 79-849,79-849
• Citation: 387 So.2d 517
• Parties: Ronald Lehman BAIR, Appellant, v. PALM BEACH NEWSPAPERS, INC., etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 517

387 So.2d 517

Ronald Lehman BAIR, Appellant, v.PALM BEACH NEWSPAPERS, INC., etc., et al., Appellees.

No. 79-849.

District Court of Appeal of Florida, Fourth District.

Sept. 3, 1980.

Eugene M. Underberg, Lake Worth, for appellant.

Richard W. Glenn of Albury, Webb, Park & Glenn, West Palm Beach, for appellees.

HERSEY, Judge.

Plaintiff appeals from an order dismissing his complaint with prejudice for failure to prosecute.We point out preliminarily that such a dismissal, under Rule 1.420(e),Florida Rules of Civil Procedure, is to be without prejudice.Spolter Electrical Supplies, Inc. v. Kalb, 275 So.2d 594(Fla. 4th DCA1973).

The record discloses the following record activity.The complaint was filed on December 13, 1976.Defendant filed a motion to dismiss for failure to state a cause of action on December 22, 1976.On January 4, 1978 a notice of dismissal was entered by the Clerk of the Circuit Court.The case was then dismissed for lack of prosecution.However, by court order of February 14, 1978, that dismissal was set aside.The parties filed a stipulation on June 28, 1978 to permit the filing of an amended complaint.Defendants' motion to dismiss for lack of prosecution was then filed on January 12, 1979.The order granting that motion is the basis of this appeal and contains the following language:

This matter was heard upon the defendantsPalm Beach Newspapers, Inc.'s motion to dismiss for failure to prosecute.The one bit of record activity within one year prior to the pending motion to dismiss for failure to prosecute was the June 25, 1978 stipulation permitting an amended complaint.The court is of the view that that stipulation is not the sort of active measure necessary to hasten the suit to judgment.Even if that ruling be in error, the court is of the view that under the authority of Shalabey vs. Memorial Hospital, 253 So.2d (7)12(Fla. 4th DCA1971), the exercise of sound discretion requires the dismissal because of the totality of circumstances concerning the plaintiff's failure to prosecute the case.

First, the inherent power of a trial court to dismiss an action for failure to prosecute, as referred to in Shalabey, supra, has been abrogated by the following amendment to Rule 1.420(e),Florida Rules of Civil Procedure: "Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute."As stated by the court in American Salvage and Jobbing Company, Inc. v. Salomon, 367 So.2d 716, 717(Fla. 3d DCA1979);"It is obvious that the effect of the amendment is to preclude a trial court from exercising its supposed inherent, discretionary power to dismiss a case for failure to prosecute, when, as in this case, there is activity of record within one year prior to the dismissal."

Nevertheless, Rule 1.420(e), as interpreted by Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706, 707(Fla.1951), and its progeny, requires "some active measure . . . intended and calculated to hasten the suit to...