Government Emp. Ins. Co. v. Wheelus, 77-2263

• Decision Date: 02 April 1980
• Docket Number: No. 77-2263,77-2263
• Citation: 382 So.2d 124
• Parties: GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Randall Charles WHEELUS, etc., et al., Appellees. /NT4-78.
• Court: Florida District Court of Appeals

Page 124

382 So.2d 124

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Randall Charles WHEELUS, etc., et al., Appellees.

No. 77-2263/NT4-78.

District Court of Appeal of Florida, Fifth District.

April 2, 1980.

Janis M. Halker of Gurney, Gurney & Handley, P. A., Orlando, for appellant.

Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.

PER CURIAM.

This case is no stranger to the Court. ¹ It is here today because of its dismissal for lack of prosecution. We affirm.

The relevant history centers on the time frame between July 15, 1976 and August 5, 1977. On the former date GEICO filed its response to a request to produce. There is a void in record activity until August 5, 1977 when the defendants Floyd and Florida Coca Cola Bottling Company filed their motion to dismiss for lack of prosecution. GEICO responded by filing a notice for trial on September 6, 1977. Defendants' motion for dismissal was heard and granted on September 7, 1977 and thereafter the trial court denied a petition for rehearing.

Appellant's sole contention on appeal is that the trial court abused its discretion by not considering GEICO's notice for trial which was filed after the motion to dismiss. We disagree. This very issue was considered by the Supreme Court in Chrysler Leasing Corporation v. Passacantilli, 259 So.2d 1, 4 (Fla.1972) where the court said:

. . . (N)either the statute nor the rule contemplates that a party may show "prosecution" by filing a pleading after a motion to dismiss is made by the other side. The underlying purpose of the rule, (as of its predecessor, Fla.Stat. § 45.19, F.S.A.), is to expedite the course of litigation and keep dockets as nearly current as possible by penalizing those who would allow litigation to become stagnant. To permit a party to show "action" by filing a pleading subsequent to a motion to dismiss for want of prosecution would effectively emasculate the rule by eliminating its penalty aspect. A party could delay the progress of the action for an indefinite period of time in the knowledge that when his adversary moved to dismiss under the rule, he could prevent dismissal merely by filing some pleading, motion or affidavit. That is, a party could avoid dismissal in every case by acting after the motion was made, whether or not he had prosecuted the action during the previous year, or could show good cause for his failure to do so. The threat of dismissal would cease to have any...