DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

AMBER REED,

Appellant,

v.

DUSTIN REED,

Appellee.

No. 4D2023-1898

[May 15, 2024]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Karen M. Miller, Judge; L.T. Case No. 50-2021-DR-010582-

XXXX-NB.

David L. Gorman of David L. Gorman, P.A., North Palm Beach, for 

appellant.

No appearance for appellee.

PER CURIAM.

Appellant challenges the dismissal of a petition for dissolution of 

marriage for lack of prosecution. The court dismissed the case because 

there was no record activity during the ten months immediately preceding 

service of the notice, nor any record activity during the sixty days 

immediately following the service of the notice. A review of the record 

shows clearly that multiple pleadings were filed within the sixty days 

following the notice. Therefore, we reverse.

The court dismissed the case pursuant to Family Law Rule of Procedure 

12.540. Although there is a dearth of case law construing rule 12.540, the 

rule is nearly identical to Florida Rule of Civil Procedure 1.420(e), making 

the construction of rule 1.420(e) instructive.

In Waldeck v. MacDougall, 300 So. 3d 1218 (Fla. 4th DCA 2020), this 

Court explained the “bright-line rule” prescribed by rule 1.420:

The rule governing lack of prosecution sets forth a simple, 

mechanical, bright-line inquiry: has there been record activity 
2

in the ten months preceding the issuance of the notice of lack 

of prosecution, or has there been record activity in the sixty 

days following issuance of such notice? See Fla. R. Civ. P. 

1.420(e). Any litigant or party who has sat through a lack of 

prosecution calendar knows exactly how mechanical the 

application of this bright-line rule can be. The hearing 

consists of a review of the docket, and while it serves an 

important purpose of managing the docket and closing 

abandoned cases or moving slow cases forward, it often 

contains all the drama and legal intrigue of a DMV waiting 

room. No record activity, no good cause shown at least five 

days prior to the hearing, case dismissed. Record activity 

shown within the sixty-day grace period, the case survives. 

Simple. In this case, Appellants showed timely record activity, 

yet the case was nonetheless dismissed. Appellee argued, and 

the trial court agreed, that some record activity doesn’t count. 

Appellee overcomplicated what is a simple, bright-line rule. 

Record activity, of any kind, is record activity, and the case 

should not have been dismissed.

Id. at 1219.

Our supreme court has held that activity by either the plaintiff or the 

defendant can constitute record activity so as to avoid dismissal for lack 

of prosecution. See E. Elevator, Inc. v. Page, 263 So. 2d 218, 219–20 (Fla. 

1972). Therefore, it is immaterial that the pleadings served after receipt of 

the court’s notice of lack of prosecution were served by the respondent 

rather than the petitioner.

The order of dismissal for lack of prosecution is reversed and remanded 

for further proceedings in the cause.

Reversed and remanded.

WARNER, CONNER and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.