Doris Sheppard v. Bruce Barman and Maureen Barman

FIFTH DISTRICT C OURT OF A PPEAL
S TATE OF FLORIDA
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Case No. 5D2024-2001
LT Case No. 2021-CA-000009
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DORIS S HEPPARD,
Appellant,
v.
B RUCE B ARMAN and M AUREEN
B ARMAN ,
Appellees.
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On appeal from the Circuit Court for Citrus County.
Caroline A. Falvey, Judge.
Philip D. Wayne, of Dewitt Law Firm, P.A., Orlando, for
Appellant.
Elizabeth A. Buchwalter and Chandra L. Miller, of Thompson
Miller, P.A., St. Petersburg, for Appellees.
December 19, 2025
PER C URIAM.
A FFIRMED.
E ISNAUGLE and K ILBANE, JJ., concur.
EDWARDS, J., concurs specially, with opinion.

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Case No. 5D2024-2001
LT Case No. 2021-CA-000009
E DWARDS, J., concurring specially.
I concur in the decision to affirm the trial court’s detailed,
well-reasoned 	order 	denying 	rehearing 	and 	the 	initial 	order
dismissing 	Appellant’s 	personal 	injury 	case 	for 	failure 	to
prosecute. 	The dismissal was pursuant to Florida Rule of Civil
Procedure 1.420(e), which the trial court discussed, relied on, and
found created a bright line for how to proceed, with no room within
which to exercise discretion. 	Appellant’s counsel failed to follow
the clear mandates of that rule.1
1 Florida Rule of Civil Procedure 1.420(e) effective January 1,
2006, 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.

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In summary, there had been no record activity in the case
during the ten months preceding the court’s serving notice of
intent to dismiss for failure to prosecute, there was no record
activity 	in 	the 	sixty 	days 	following 	the 	notice 	of 	intent, 	and
Appellant’s counsel failed to make any effort to show good cause at
least five days prior to the hearing as to why the case should
remain pending. Applying Rule 1.420(e) literally, according to its
clear language, the trial court correctly dismissed the case, even
though the statute of limitations had likely run. As the trial court
noted, the rule provides that the case shall be dismissed if there
was no record activity and no showing of good cause.
However, as simple as it seems to apply that rule, there is an
unbroken chain of cases, mostly decided prior to adoption of the
current version of Rule 1.420(e), which provide that once a party
has filed a notice for trial in accordance with Rule 1.440 and the
court takes no steps towards setting trial, the case cannot be
dismissed for lack of prosecution. There is no language in the prior
or current version of Rule 1.420(e) incorporating or discussing this
long-recognized concept of immunity from dismissal based on
having properly noticed the case for trial.
Appellant relies heavily on Mikos v. Sarasota Cattle Co., 453
So. 2d 402 (Fla. 1984), in which the Florida Supreme Court
approved of the lower court’s decision that held that once a plaintiff
has given notice that it is ready for trial, the trial court must enter
an order fixing a date for trial and is therefore precluded from
dismissing the action for lack of prosecution even if the plaintiff
fails to take any further action. Id. at 403, receded from in part by
Fishe & Kleeman, Inc. v. Aquarius Condo. Ass’n, 524 So. 2d 1012,
1012–13 	(Fla. 	1988) 	(holding 	that 	“the 	bar 	against 	dismissal
terminates after the trial court has taken action in response to the
notice for trial”); see also Cabrera v. Pazos, Larrinaga & Taylor,
P.A., 922 So. 2d 422, 424 (Fla. 2d DCA 2006); Howland Feed Mill,
Inc. v. Hart, 774 So. 2d 962 (Fla. 1st DCA 2001).
Once a party files a proper Rule 1.440(b) notice that a matter
is ready for trial, it is the court’s duty to set the cause for trial.2
2 A notice for trial will not protect the plaintiff from dismissal
if the case is not “at issue” when the notice is filed. Gen. Guar. Ins.

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See Young v. Mobile Dental Health, Inc., 730 So. 2d 766, 766 (Fla.
2d DCA 1999) (“[I]t is the trial court’s responsibility to enter an
order setting a date for trial, and it is the filing of the notice which
bars the court from dismissing the action for lack of prosecution.”).
Failure of the trial court to set the case for trial precludes dismissal
for failure to prosecute despite the lack of record activity. Reyes v.
Reeves Se. Corp., 895 So. 2d 1274, 1274–75 (Fla. 2d DCA 2005)
(noting that once a party files a proper Rule 1.440(b) notice, a
matter is ready for trial, and it is the court’s duty to set the cause
for trial).
Furthermore, parties are not required to re-notice the case for
trial or remind the court of the pending notice if the court failed to
act on the notice and no order setting the trial date was entered.
See Bolt v. Smith, 594 So. 2d 864, 864 (Fla. 5th DCA 1992) (finding
that the plaintiff did not have a duty to re-notice the case for trial);
see also Fishe & Kleeman, Inc., 524 So. 2d at 1015 (noting that an
attorney should not pressure a trial judge).
Appellees and the trial court ignore the fact that while Mikos
and most of its progenies were decided prior to enactment of the
current version of Rule 1.420(e), there is every reason to believe
they are still good law as they were not based on language of the
prior version of the rule, and nothing in the current version of the
rule 	addresses 	this 	issue. 	None 	of 	those 	cases 	have 	been
overturned or receded from, despite the amendment. 	See Reyes,
895 So. 2d at 1274; Citimortgage, Inc. v. Hill, 140 So. 3d 703, 704–
05 (Fla. 1st DCA 2014); Chemrock Corp. v. Tampa Elec. Co., 71 So.
3d 786, 793–94 (Fla. 2011) (Pariente, J., concurring) (discussing
Rule 1.440); Cabrera, 922 So. 2d at 424 (“Failure of the trial court
to set the case for trial precludes dismissal for failure to prosecute
. . . .”). Appellees cite no case law to support their proposition that
a trial court can dismiss a case for want of prosecution, where a
notice for trial has been filed, although not yet acted on, under
Rule 1.420(e).
Co. v. Bolivar, 460 So. 2d 1011, 1012 (Fla. 2d DCA 1984). The case
at hand was clearly at issue here as there was a complaint and an
answer in response.

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While Rule 1.420 can be interpreted as creating a bright line
rule 	requiring 	mandatory 	dismissal, 	one 	can 	certainly 	argue
forcefully that the line of cases providing immunity from dismissal
for lack of prosecution remains viable. “Where a court encounters
an express holding from [the Florida Supreme Court] on a specific
issue and a subsequent contrary dicta statement on the same
specific issue, the court is to apply our express holding . . . .”
Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002). The district court
may 	certify 	a 	question 	of 	great 	public 	importance 	where 	it
perceives 	“disharmony” 	caused 	by 	a 	decision 	of 	the 	Florida
Supreme Court. Id. at 905–06.
The language change in the amended rule plays no role here
as neither this Court nor the Florida Supreme Court intentionally
overrules itself sub silentio. Campbell v. State, 288 So. 3d 739,
743–44 (Fla. 5th DCA 2019) (citing Puryear, 810 So. 2d at 905); see
also Stevens v. State, 226 So. 3d 787, 792 (Fla. 2017) (“Again, we
reiterate that ‘this Court does not intentionally overrule itself sub
silentio.’” (quoting Puryear, 810 So. 2d at 905)). Thus, despite the
mandatory language in Rule 1.420 otherwise requiring dismissal,
given that Appellant filed a notice for trial and the trial court did
not set the case for trial, one could conclude that application of the
unbroken line of cases, barred the trial court from dismissing
Appellant’s case for lack of prosecution.
It is difficult to understand why Appellant’s counsel failed to
engage in any record activity in the sixty-day period after the court
served its notice of intent to dismiss for lack of prosecution.3 It’s
even more difficult to understand why Appellant’s counsel failed
to file a written showing of good cause, i.e., having noticed the case
for trial, at least five days prior to the hearing. 	However, it is
likewise difficult to understand the value in permitting confusion
and tension to remain between Rule 1.420(e) and the immunity
from dismissal afforded by noticing a case for trial as enshrined in
case law. Eliminating this confusion would benefit the bench, bar,
and the litigants they serve.
3 As the trial court noted in its order of dismissal, filing almost
anything in that sixty-day period would have avoided dismissal.

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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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