McGrath v. Martin, 3D15–1821
Decision Date | 29 November 2017 |
Docket Number | No. 3D15–1821,3D15–1821 |
Citation | 238 So.3d 361 |
Parties | John MCGRATH, Appellant, v. Robert MARTIN, Jr., et al., Appellees. |
Court | Florida District Court of Appeals |
The Corona Law Firm, P.A., and Ricardo M. Corona, for appellant.
Johnson Law Group, and Jeffrey W. Johnson and Michael E. Wargo (Boca Raton), for appellees.
Before SUAREZ, LOGUE, and LUCK, JJ.
John McGrath appeals an order dismissing his case for lack of prosecution under Florida Rules of Civil Procedure 1.420(e). McGrath sued Martin for personal injuries stemming from an accident. On March 5, 2015, Martin filed a notice of lack of prosecution asserting that no record activity had occurred in the prior ten months. The record, however, reflected activity had in fact occurred within the prior ten months, namely, plaintiff's co-counsel's motion to withdraw filed on October 17, 2014, and the trial court's order granting the motion to withdraw on November 17, 2014.
Nevertheless, the trial court dismissed the case on June 8, 2015. McGrath filed a timely motion for rehearing under Florida Rule of Civil Procedure 1.530 pointing out the legal error. Martin responded by arguing that Rule 1.530 did not apply to dismissals for lack of prosecution. The trial court agreed stating that "the 1.530 analysis doesn't apply because this was not a non-jury trial, nor was it a summary judgment." It denied the motion for rehearing.
On appeal, Martin continues to argue that Rule 1.530 does not apply to dismissals for lack of prosecution. We reject this argument. See, e.g., Renovaship, Inc. v. Quatremain, 208 So.3d 280, 284 (Fla. 3d DCA 2016) () ; Beverly Enters.–Fla., Inc. v. Lane, 855 So.2d 1172 (Fla. 5th DCA 2003) ( ); Cape Royal Realty, Inc. v. Kroll, 804 So.2d 605, 606 (Fla. 5th DCA 2002) ( ). See generally, De La Osa v. Wells Fargo Bank, N.A., 208 So.3d 259, 261 (Fla. 3d DCA 2016). We note neither party cited these cases to the trial court.
Reversed and remanded for further proceedings consistent with this opinion.
I agree with the conclusion reached by the majority opinion but I would get there in a different way. I would reverse the trial court's Rule 1.420(e) order of dismissal for lack of prosecution because there was record activity within the ten months preceding the notice of inactivity. See Bay Park Towers Condo. Ass'n, Inc. v. Triple M. Roofing Corp., 55 So.3d 591, 592 (Fla. 3d DCA 2010) (...
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...under Rule 1.530 is an appropriate method of contesting the erroneous dismissal of a case for lack of prosecution. [ McGrath v. Martin , 238 So.3d 361 (Fla. 3d DCA 2017).] §1:272 Preserving Issues for Appeal Through a Timely-Filed Motion for Rehearing A timely filed motion for rehearing is ......