Hirsch v. Muldowney

470 So.2d 766 (1985) Nathan B. HIRSCH, M.D., Appellant, v. Young H. MULDOWNEY, Appellee. No. 84-2303. District Court of Appeal of Florida, Third District. June 4, 1985. Thornton & Herndon and John Edward, Miami, for appellant. John Muldowney, Miami, for appellee. Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ. PER CURIAM. The trial court should have granted defendant's motion to dismiss for lack of prosecution where (1) the last record activity prior to the filing of that motion was an order continuing trial filed more than one year before, and (2) plaintiff did not show good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Fla.R.Civ.P. *767 1.420(e); Govayra v. Straubel, 466 So.2d 1065 (Fla. 1985). Further, it was plaintiff's burden, not the court's, to renotice the case for trial since it was the plaintiff who requested the continuance due to withdrawal of counsel. See Govayra; Bogart v. F.B. Condominiums, Inc., 438 So.2d 856 (Fla. 2d DCA 1983), rev. denied, 449 So.2d 264 (Fla. 1984). Reversed.