Weiss v. Berkett, 949 So.2d 1092 (Fla. 3d DCA Feb 07, 2007)

This one-paragraph opinion doesn’t explain the facts of the case, but it appears that a probate adversarial proceeding was dismissed for lack of prosecution under Florida Rule of Civil Procedure 1.420(e).  The party whose claim was dismissed then filed a Petition for Writ of Prohibition with the 3d DCA apparently arguing that the trial court improperly applied Rule 1.420(e).  The 3d DCA agreed as follows:

We grant the petition for writ of prohibition. The Florida Rules of Civil Procedure apply to adversarial proceedings in probate court. See Mangasarian v. Mercurio, 570 So.2d 356 (Fla. 3d DCA 1990); Fla. Prob. R. 5.020(d)(2); Fla. R. Civ. P. 1.420(e). The trial court has exceeded its jurisdiction as the order under review does not comport with the requirements of Florida Rule of Civil Procedure 1.420(e) for dismissal for lack of prosecution.

Sample Pleading:

After initially posting on this case, the petitioner, Patricia Pollak Weiss, posted a comment (see below) and was kind enough to email me a copy of her winning Petition for Writ of Prohibition, which, with her authorization, I’ve copied to this blog post for those interested in reviewing it for future reference.

Lesson learned:

Adversarial proceedings in probate are subject to dismissal for lack of prosecution under Florida Rule of Civil Procedure 1.420(e), which provides as follows:

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.