Summary
holding that an action cannot be dismissed for failure to prosecute when a dispositive motion is pending before the court
Summary of this case from Fuster-Escalona v. WisotskyOpinion
No. 95-2871.
August 21, 1996.
Appeal from the Circuit Court, Dade County, Margarita Esquiroz, J.
Kenneth E. Cohen; Fried Luceri, P.A., and Frank Luceri (Fort Lauderdale), for appellant.
Rumberger, Kirk Caldwell and Joshua D. Lerner and Joseph M. Maus, for appellees.
Before NESBITT, JORGENSON, and GREEN, JJ.
The plaintiff in a legal malpractice action appeals from an order dismissing her complaint for failure to prosecute. For the following reasons, we reverse.
While a motion for summary judgment was pending before the trial court, the defendants moved to dismiss for failure to prosecute on the ground that there had been no record activity for over one year. The trial court granted the motion, and in doing so, erred.
Appellant's failure to proceed "in reliance upon anticipated rulings by the court on these motions was sufficient demonstration of good cause, we think, to preclude the dismissal of [this action]." Air Line Pilots Ass'n v. Schneemilch, 674 So.2d 782, 783 (Fla. 3d DCA 1996).
We emphasize that our holdings in this case and in Air Line Pilots establish a bright-line rule: whenever a dispositive motion is pending before the court, and the parties are awaiting the court's ruling on that motion, the duty to proceed rests squarely upon the court. During that period of the court's deliberation, the cause cannot be dismissed for lack of record activity.
Reversed and remanded for further proceedings.