Shalabey v. Memorial Hospital of South Broward Hospital Dist., 70-984

• Decision Date: 27 October 1971
• Docket Number: No. 70-984,70-984
• Citation: 253 So.2d 712
• Parties: Sadie B. SHALABEY, as Administratrix of the Estate of Charles H. Shalabey, Deceased, Appellant, v. MEMORIAL HOSPITAL OF the SOUTH BROWARD HOSPITAL DISTRICT et al., Appellees.
• Court: Florida District Court of Appeals

Page 712

253 So.2d 712

Sadie B. SHALABEY, as Administratrix of the Estate of Charles H. Shalabey, Deceased, Appellant, v. MEMORIAL HOSPITAL OF the SOUTH BROWARD HOSPITAL DISTRICT et al., Appellees.

No. 70-984.

District Court of Appeal of Florida, Fourth District.

Oct. 27, 1971.

Robert M. Sturrup, of Faircloth, Sturrup & Della-Donna, Fort Lauderdale, and William J. George, Pompano Beach, for appellant.

James B. Chaplin, of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, Fort Lauderdale, for appellee Memorial Hospital.

Dieter K. Gunther, of Carey, Dwyer, Austin, Cole & Selwood, Fort Lauderdale, for appellees Hollander Roberts and Atkin.

MAGER, Judge.

Plaintiff appeals a final order in favor of defendants dismissing plaintiff's complaint for want of prosecution under the provisions of Rule 1.420(e), F.R.C.P., 30 F.S.A. The record reflects that plaintiff filed her complaint on April 21, 1967. The record further reflects that the last action taken by the filing of pleadings by any party occurred on October 10, 1969.

On October 10, 1970, the trial court, sua sponte, prepared and entered a motion to dismiss for want of prosecution and notice of hearing thereon to be held on October 27, 1970. The record further reflects that the court's motion was Filed, for record on October 12, 1970. On October 21, 1970, plaintiff filed her response to the motion to dismiss and a notice of trial. The court's final order of dismissal was entered and filed on October 27, 1970.

Plaintiff contends that the computation of the one year period prescribed by Rule 1.420(e) is determined by the date on which the trial court Entered its motion; so that when the court entered its motion on October 10, 1970, one year had not as yet elapsed since the filing of the last pleading on October 10, 1969, thereby rendering the trial court's motion premature. Plaintiff, in effect, urges that the court's filing of this motion on October 12, 1970, is not significant; instead what is significant is the date the court Entered its order, to wit: October 10, 1970, at which time the plaintiff asserts that the one year period had not as yet elapsed.

Rule 1.420(e), F.R.C.P., provides as follows:

'(e) Failure to Prosecute. All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court or otherwise for a period of one year shall be dismissed by the court On its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing why the action should remain pending at least five days before the hearing on the motion.' (Emphasis added.)

In computing the time within which a thing must be done under this rule, the day on which the last pleading is filed is not counted. Based on this formula the one year period began on October 11, 1969, and extended through and including October 10, 1970.

We agree with the plaintiff that on October 10, 1970, the one year period had not as yet expired. However, we cannot accept plaintiff's contention that the court's action was premature. It is our view that the court's motion had no legal significance until it was Filed on October 12, 1970; and it is immaterial to the computation of the one year period that the trial court may have been mistaken as to the exact computation on the day the motion was Entered. The determinative factor in regard to the computation of the one year period is the date of Filing, i. e., the date the last pleading was filed and the date of filing of the action seeking to abate the proceedings. If the record shows no affirmative action for more than one year between these two filing dates the proceeding is subject to abatement.

Obviously there must be some method by which the one year period can be measured with some degree of certainty. It would seem that this time period can best be determined if the filing date of the last action and the filing date of the action seeking to abate are the guideposts.

In making such determination it makes little difference whether an action to abate is commenced by a party Or by the court. It is necessary, however, that affirmative action must be taken to secure abatement just as affirmative action must be taken to prevent abatement. In other words, Rule 1.420(e) is not self-executing or automatic; the rule has been interpreted as requiring a moving party to affirmatively seek dismissal and such action must be undertaken...