General Guar. Ins. Co. v. Bolivar, 84-1761
| Decision Date | 21 December 1984 |
| Docket Number | No. 84-1761,84-1761 |
| Citation | 460 So.2d 1011,10 Fla. L. Weekly 41 |
| Parties | 10 Fla. L. Weekly 41 GENERAL GUARANTY INSURANCE COMPANY, Appellant, v. Louise C. BOLIVAR, Appellee. |
| Court | Florida District Court of Appeals |
Leslie King O'Neal of Markel, McDonough & O'Neal, Orlando, for appellant.
J. Bert Grandoff and Leonard R. Poe of Lawson, McWhirter, Grandoff & Reeves, Tampa, for appellee.
Appellant, General Guaranty Insurance Company, appeals the trial court's order of an involuntary dismissal for failure to prosecute pursuant to rule 1.420(e), Florida Rules of Civil Procedure. We affirm.
In 1973, Commercial Roof Decks of Tampa, Inc. filed suit against Rene Bolivar Construction Co., Inc. and General Guaranty Insurance Co. ("General Guaranty"). General Guaranty filed its third-party complaint and later a first amended third-party complaint, against several third-party defendants. Louise Bolivar, appellee, was not one of the third-party defendants.
In January 1977 Bolivar was brought into this action by being served General Guaranty's second amended third-party plaintiff's complaint. Approximately two weeks later Bolivar filed a motion to dismiss and a motion for more definite statement. These two motions were still pending and Bolivar had not answered the second amended third-party plaintiff's complaint when, more than six years later, on April 21, 1983, General Guaranty served its notice stating that the third-party action was at issue and requested that the same be set for trial. On April 27, 1983, the court sua sponte entered an order of recusal. Nothing further occurred in the case until May 29, 1984, when Bolivar filed a motion for involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(e). Bolivar's motion for involuntary dismissal was granted by the court. This appeal followed.
General Guaranty argues that Mikos v. Sarasota Cattle Co., 453 So.2d 402 (Fla.1984), controls. In Mikos, the Florida Supreme Court affirmed this court's holding that once a plaintiff has given notice that it is ready for trial, the trial court must enter an order setting a trial date and is therefore precluded from dismissing an action for lack of prosecution. There is a critical distinction, however, between Mikos and the case at bar. In Mikos, the action was at issue, both parties had filed notices for trial and, thus, notices for trial were proper. Here, as conceded by General Guaranty, the action was not at issue when the notice for trial was filed and therefore General Guaranty's notice for trial was improperly...
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