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Personalized Air Con. v. C.M. Systems

District Court of Appeal of Florida, Fourth District
Mar 16, 1988
522 So. 2d 465 (Fla. Dist. Ct. App. 1988)

Summary

In Personalized Air Conditioning, the last “record activity” was on April 22, 1986, and the defendants filed a motion to dismiss for failure to prosecute on December 3, 1986.

Summary of this case from Woods v. Lloyds Asset Management, LLC

Opinion

No. 87-0991.

March 16, 1988.

Appeal from the Circuit Court, Palm Beach County, Richard I. Wennet, J.

Kenneth W. Shapiro of Sherr, Tiballi, Fayne Schneider, Fort Lauderdale, for appellant.

David E. Gurley, Anthony J. Abate and Donald D. Clark of Abel, Band, Brown, Russell Collier, Chartered, Sarasota, for appellee-The Travelers Indem. Co.


On or about July 2, 1985, appellant filed a complaint under a Labor and Material Payment Bond against C.M. Systems of Pinellas County, Inc., as principal, and The Travelers Indemnity Company, as surety. On August 14, 1985, Travelers and C.M. Systems filed a motion to dismiss, and on September 16, 1985, a motion to strike and to transfer. Except for the filing of a Notice of Substitution of Counsel on April 22, 1986, these motions were the last "record activity" in the court file prior to Travelers' filing a motion to dismiss for failure to prosecute on or about December 3, 1986. On April 25, 1986, C.M. Systems filed a petition in bankruptcy in the federal district court; however, no formal written notice thereof was filed in the trial court in this case until December 30, 1986. Nevertheless, on January 9, 1987, the trial court entered an order requiring the parties to show cause why the action should not be dismissed for lack of prosecution. Appellant filed a response and, at the hearing on the rule, counsel for the appellant advised the court that appellee, C.M. Systems, had filed a petition in bankruptcy during the pendency of the suit, thus automatically staying the cause. The trial court then entered its order dismissing the cause as to Travelers for failure to prosecute and allowed the cause to remain pending against appellee, C.M. Systems.

Appellant contends on appeal that the trial court erred in dismissing the cause as to Travelers because 1) the cause had been automatically stayed by C.M. Systems' filing of the petition in bankruptcy, and 2) Florida Rule of Civil Procedure 1.420(e) precludes dismissal as to only one of several parties for lack of prosecution.

The record indicates that the trial court was advised prior to entry of the order of dismissal that C.M. Systems had filed a petition in bankruptcy some seven or eight months prior thereto. Filing of a petition in bankruptcy effectuates an automatic stay of all proceedings against a debtor effective the date the petition is filed and actions taken in violation of the stay are void even if there is no actual notice of the stay. Kalb v. Feverstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940); Pope v. Manville Forest Products Corporation, 778 F.2d 238 (5th Cir. 1985); 2 Collier on Bankruptcy ¶¶ 362.03, 362.11 (L. King 15th ed. 1985). Thus, this proceeding was automatically stayed and the trial court's action in dismissing it was void. Furthermore, under Florida Rule of Civil Procedure 1.420(e) a motion to dismiss for failure to prosecute may not be granted as to some of the defendants in a case and not as to others. As the court said in Bowman v. Peele, 413 So.2d 90, 91 (Fla. 2d DCA 1982):

Where the court has acquired jurisdiction over all of the parties, a motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e) will not lie as to an individual party. Accordingly, if an action is stayed as to one or more of the parties either by court order or by an automatic stay invoked because of the federal bankruptcy act, it will not be dismissed for failure to prosecute. To hold otherwise would frustrate the purpose of the rule which is to expedite and simplify litigation, not to cause additional litigation through no fault of the one moved against. It is true that the appellant could have proceeded against the appellee individually, but to do so, without severing the cause of action, would not have expedited the litigation. Action against the appellee would not have affected the other defendants and accordingly would not have advanced the entire case toward its ultimate disposition.

Thus, dismissal of Travelers, leaving the case pending against C.M. Systems, was error.

Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings.

WALDEN, J., and SHARP, WINIFRED J., Associate Judge, concur.


Summaries of

Personalized Air Con. v. C.M. Systems

District Court of Appeal of Florida, Fourth District
Mar 16, 1988
522 So. 2d 465 (Fla. Dist. Ct. App. 1988)

In Personalized Air Conditioning, the last “record activity” was on April 22, 1986, and the defendants filed a motion to dismiss for failure to prosecute on December 3, 1986.

Summary of this case from Woods v. Lloyds Asset Management, LLC

explaining that trial court proceeding is automatically stayed upon filing of a petition in bankruptcy so any trial court order entered during stay is void

Summary of this case from Ormond Beach Associates Ltd. v. Citation Mortgage, Ltd.

In Personalized Air Conditioning, Inc., this court also recognized that an action may not be dismissed for failure to prosecute notwithstanding a delay in formal filing of a notice of the stay until after the motion to dismiss.

Summary of this case from Dolan v. Hartford Ins. Co. of the S.E
Case details for

Personalized Air Con. v. C.M. Systems

Case Details

Full title:PERSONALIZED AIR CONDITIONING, INC., A FLORIDA CORPORATION, APPELLANT, v…

Court:District Court of Appeal of Florida, Fourth District

Date published: Mar 16, 1988

Citations

522 So. 2d 465 (Fla. Dist. Ct. App. 1988)

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