Thursday, October 27, 2011

Dismissal For Lack Of Prosecution Requires Notice & Opportunity To Recommence

In Schaffer v. First Bank (4D11-3406), the Fourth District denied a petition for certiorari that sought to quash a trial court's order vacating a dismissal for lack of prosecution. The facts are fairly simple:
The foreclosure case was administratively dismissed on April 7, 2011. The bank moved to reinstate on May 26, 2011. In the motion, the bank’s attorney explained that he had filed a Notice of Change of Firm Name and Address on May 1, 2009. Despite this, on July 19, 2010, the court mailed the Motion, Notice, and Order of Dismissal—which advised of the lack of record activity and that dismissal would occur if no record activity occurred within sixty days—to the incorrect address.
The petitioners argued that "the trial court acted in excess of its jurisdiction where the motion to reinstate was not served within thirty days of the dismissal." However, the court noted that "Effective October 1, 1968, the Florida Supreme Court removed the italicized sentence," of the rule which stated "provided that actions so dismissed may be reinstated on motion for good cause, such motion to be served by any party within one month after such order of dismissal." Additionally, "in 2005, the Florida Supreme Court amended Subdivision 1.420(e) 'to provide that an action may not be dismissed for lack of prosecution without prior notice to the claimant and adequate opportunity for the claimant to re-commence prosecution of the action to avert dismissal.'”

Therefore, the court held that:
The bank was not provided notice or an opportunity to recommence prosecution of the case before the dismissal. The trial court was not without jurisdiction to reinstate the case under these circumstances. The petition is without merit.


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