Henson v. Whorf
466 So. 2d 23
| Fla. Dist. Ct. App. | 1985|
Check TreatmentMarion E. HENSON and Malba H. Brown, Appellants,
v.
Charles F. WHORF, et al., Appellees.
District Court of Appeal of Florida, Fifth District.
*24 Bonnie S. Newton, Seminole, for appellants.
John Russell, Homosassa Springs, and W.T. Green, Crystal River, for appellees, Whorf.
PER CURIAM.
It was error to dismiss the action for failure to prosecute (Rule 1.420(e), Fla.R. Civ.P.) when it is clear that there was record activity within the year preceding the filing of appellee's motion to dismiss. Nektaredes v. Sagonias, 432 So. 2d 769 (Fla. 2d DCA 1983). Even had it been proper to do so, a dismissal under that rule should be without prejudice. Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980).
The order of dismissal is
REVERSED.
ORFINGER, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.