Opinion
No. ZZ-258.
October 28, 1981. Rehearing Denied November 25, 1981.
Appeal from the Circuit Court, Clay County, Lamar Winegeart, Jr., J.
Richard S. Hilmer, DeLand, for appellant.
Barry L. Zisser of Zisser, Robison Spohrer, Jacksonville, and James L. Harrison, Jacksonville, for appellees.
The single issue presented for review in this appeal is whether there was sufficient record activity to preclude dismissal for failure to prosecute under Fla.R.Civ.P. 1.420(e). We hold that the plaintiff/appellant's filing of a notice of hearing within the year preceding the motion to dismiss for failure to prosecute was effective to prevent a Rule 1.420(e) dismissal. The notice set a hearing date for several outstanding motions filed by a defendant and was filed less than one year after the motions were filed. In ruling that the plaintiff's complaint should be dismissed for failure to prosecute, the trial judge did not consider the effect of the notice of hearing. As stated by this Court in Thomas v. Estate of Deloach, 400 So.2d 204 (Fla. 1st DCA 1981), however, "courts have consistently held that a notice of trial or hearing is sufficient action to avoid the effect of a motion to dismiss under Rule 1.420(e)."
REVERSED and REMANDED for further proceedings consistent with this opinion.
ERVIN and WENTWORTH, JJ., concur.