STATE DEPT. OF ENVIRONMENTAL PROTECTION v. Crest Products, Inc.

671 So. 2d 211, 1996 Fla. App. LEXIS 3269, 1996 WL 135507

• Court: District Court of Appeal of Florida
• Decided: March 27, 1996
• Docket: 95-02053
• Status: Published

Opinion

671 So.2d 211 (1996)

STATE of Florida DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellant,
v.
CREST PRODUCTS, INC., Appellee.

No. 95-02053.

District Court of Appeal of Florida, Second District.

March 27, 1996.

Thomas M. Beason, Assistant General Counsel, Florida Department of Environmental Protection, Tallahassee, for Appellant.

William B. Taylor, IV, of Macfarlane, Ausley, Ferguson & McMullen, Tampa, for Appellee.

WHATLEY, Judge.

The appellant, the State of Florida Department of Environmental Protection (DEP), challenges the trial court's order of dismissal for failure to prosecute. The appellee, Crest Products, Inc., concedes that the matter should not have been dismissed. We reverse.

The DEP filed a notice for trial on December 18, 1991, but the trial court failed to set the case for trial. There was no other record activity in the case since the filing of the notice for trial. The trial court dismissed the case on its own motion for failure to prosecute.

Once a plaintiff has filed a notice for trial, it is the trial court's responsibility to enter an order setting a trial date. Mikos v. Sarasota Cattle Co., 453 So.2d 402 (Fla.1984); Brown v. U.S. Sugar Corp., 562 So.2d 752 (Fla. 1st DCA 1990). The filing of the notice bars the trial court from dismissing the action for lack of prosecution. Mikos. Consequently, in this case, the trial court was barred from dismissing the action after the DEP filed its notice for trial.

Accordingly, we reverse and remand for proceedings consistent with this opinion.

SCHOONOVER, A.C.J., and FRANK, J., concur.