Barnett Bank of East Polk County v. Fleming

BARKETT, Justice.

We have for review the conflicting decisions of Fleming v. Barnett Bank of East Polk County, 490 So.2d 126 (Fla. 2d DCA 1986), and Gant v. Tallahassee Memorial Regional Medical Center, 490 So.2d 1020 (Fla. 1st DCA 1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Two questions are presented in these cases: (1) whether a prematurely filed motion to dismiss for failure to prosecute under Florida Rule of Civil Procedure 1.420(e)1 constitutes “record activity” sufficient to bar dismissal of the action, and (2) if not, whether the untimeliness of the motion renders it a…