Diamond v. Peninsular Life Insurance Co.

District Court of Appeal of Florida

Diamond v. Peninsular Life Insurance Co.

620 So. 2d 1095, 1993 Fla. App. LEXIS 6764, 1993 WL 225638

CourtDistrict Court of Appeal of Florida

DecidedJune 28, 1993

DocketNo. 92-1923

StatusPublished

This text of 620 So. 2d 1095 (Diamond v. Peninsular Life Insurance Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Diamond v. Peninsular Life Insurance Co., 620 So. 2d 1095, 1993 Fla. App. LEXIS 6764, 1993 WL 225638 (Fla. Ct. App. 1993).

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Opinion

PER CURIAM.

We review by appeal an order that struck Appellant’s rule 1.540(b) motion and supporting affidavit seeking to set aside a final summary judgment for Appellee. The order struck the motion and affidavit on the authority of rule 1.420(e), Florida Rules of Civil Procedure, because no action had been taken by Appellant to have the motion heard for more than sixteen months after it was filed and served. However, rule 1.420(e) authorizes only the dismissal of an action for failure to prosecute; it does not authorize the court to strike a motion to set aside a judgment rather than ruling on its merits. We are sympathetic with the trial court’s concern that Appellant took no action to have his motion to set aside judgment heard for more than sixteen months after it was filed, but we are also aware that Appellee could have requested the court to promptly set that motion for hearing or, alternatively, could have proceeded to obtain execution on its judgment despite the pendency of Appellant’s motion.¹ Accordingly, the appealed order is reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

ZEHMER, ALLEN and WEBSTER, JJ., concur.

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PER CURIAM.

We review by appeal an order that struck Appellant’s rule 1.540(b) motion and supporting affidavit seeking to set aside a final summary judgment for Appellee. The order struck the motion and affidavit on the authority of rule 1.420(e), Florida Rules of Civil Procedure, because no action had been taken by Appellant to have the motion heard for more than sixteen months after it was filed and served. However, rule 1.420(e) authorizes only the dismissal of an action for failure to prosecute; it does not authorize the court to strike a motion to set aside a judgment rather than ruling on its merits. We are sympathetic with the trial court’s concern that Appellant took no action to have his motion to set aside judgment heard for more than sixteen months after it was filed, but we are also aware that Appellee could have requested the court to promptly set that motion for hearing or, alternatively, could have proceeded to obtain execution on its judgment despite the pendency of Appellant’s motion.¹ Accordingly, the appealed order is reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

ZEHMER, ALLEN and WEBSTER, JJ., concur.

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Bluebook (online)

620 So. 2d 1095, 1993 Fla. App. LEXIS 6764, 1993 WL 225638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diamond-v-peninsular-life-insurance-co-fladistctapp-1993.