Fox v. Playa Del Sol Association, Inc.

446 So. 2d 126

• Court: District Court of Appeal of Florida
• Decided: March 30, 1983
• Docket: 81-2411
• Status: Published

Opinion

446 So.2d 126 (1983)

James E. FOX and Nancy Fox, His Wife, John E. Fox and Alice Fox, His Wife, Ross A. Scianna and Kim S. Scianna, His Wife, and Anthony Gianfrancesco and Helen Gianfrancesco, His Wife, Appellants,
v.
PLAYA DEL SOL ASSOCIATION, INC., a Florida Non-Profit Corporation, Appellee.

No. 81-2411.

District Court of Appeal of Florida, Fourth District.

March 30, 1983.

David S. Bowman of Bamman & Bowman, Pompano Beach, for appellants.

Robert J. Manne of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellee.

LETTS, Chief Judge.

This is an appeal from an order granting appellee's motion to dismiss for lack of prosecution.^[1] We reverse.

Appellant initiated this action in 1975. After far too many years of pre-trial manuvering, the appellant in 1980 finally filed a notice to set the case for trial. There being no activity of record in the year following the filing of the notice, the appellee moved to dismiss the case for lack of prosecution. The trial court agreed and entered an order granting the appellee's motion to dismiss. We reverse.

We must agree with the appellant's assertion that the notice for trial which he filed was all he had to do no matter how long a period elapsed thereafter. After notice of trial, absent any other happening, the ball was in the court's court and this precluded the dismissal for failure to prosecute despite the lack of record activity during the ensuing year. Visuna v. Metropolitan Transit Authority, 353 So.2d 183 (Fla. 3d DCA 1977); accord, Biscayne Construction Company v. Metropolitan Dade County, 388 So.2d 329 (Fla. 3d DCA 1980); contra, Treeshore, Inc. v. Basic Asphalt and Construction Corporation, 354 So.2d 976 (Fla. 1st DCA 1978); and Palatka Housing Authority v. Betts, 349 So.2d 784 (Fla. 1st DCA 1977).

Accordingly, we reverse the trial court's order dismissing this action and remand with directions to reinstate the cause and in so doing recognize apparent conflict with our sister court in Tallahassee.

REVERSED AND REMANDED.

DOWNEY and ANSTEAD, JJ., concur.

NOTES

[1] A dismissal for lack of prosecution is a final order for purposes of appeal. Murphy White Dairy, Inc. v. Simmons, 405 So.2d 298 (Fla. 4th DCA 1981); Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980).