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Filing # 137101565 E-Filed 10/22/2021 01:24:18 PM
IN THE CIRCUIT COURT OF THE
15TH JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
DOUGLAS J. SANCHEZ AND
ANA PAULA CORREA SANCHEZ,
Plaintiffs,
v. CASE NO.: 50-2020-CA-012652-XXXX-M
FAMILY SECURITY
INSURANCE COMPANY, INC.,
Defendant.
/
NOTICE OF FILING
Defendant, Family Security Insurance Company, by and through the undersigned
counsel, hereby gives notice of filing of the attached supplemental authority, in support of
Defendant?s Motion for Summary Indoment dated Inlv 7; 2021.
CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZA FLED 4NINDINNDA N4.94.49 DNA
PILL. PAL DLA VUUINE TT, PL, VUOL IIE mDnuecy, ULL, 1Urecieue! Ulett ritCERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing was served by e-Filing with the
Clerk of Court and via Florida e-Filing Portal to the following, this 22"! day of October, 2021.
Max Messinger, Esq.
Aleisha Hodo, Esq.
KANNER & PINTALUGA, P.A.
925 S. Federal Highway, Sixth Floor
Boca Raton, FL 33432
mmessinger( @k pattorne y.com
ahodo@kpattorney.com
FirstPartyEService@kpattorney.com
(Counsel for Plaintiffs)
s/ Jessica Kerbel
H. JACEY KAPS, CIPP/US,PCIP
Florida Bar No.: 0056677
E-mail: jkaps@rumberger.com (primary)
docketingmiami@rumberger.com and
jkapssecy@rumberger.com (secondary)
MONICA C. SEGURA
Florida Bar No.: 0021267
E-mail: msegura@rumberger.com (primary)
docketingmiami@rumberger.com and
msegurasecy@rumberger.com (secondary)
JESSICA KERBEL
Florida Bar No.: 124152
ikerbel@rumberger.com (primary)
docketingmiami@rumberger.com and
jkerbelsecy@rumberger.com (secondary)
RUMBERGER, KIRK, & CALDWELL, P.A.
Brickell City Tower, Suite 3000
80 Southwest 8th Street
Miami, Florida 33130-3037
Tel: 305.358.5577
Fax: 305.371.7580
Attorneys for DefendantCarter v. Cerezo
Court of Appeal of Florida, Fifth District
August 28, 1986, Filed
No. 85-634
Reporter
495 So. 2d 202 *; 1986 Fla. App. LEXIS 9522 **; 11 Fla. L. Weekly 1876
DIANE L. CARTER, etc., Appellant, v. LIZARDO
CEREZO, M_D., et al., Appellees
Prior History: [**1] Appeal from the Circuit Court for
Orange County, William C. Gridley, Judge.
Case Summary
Procedural Posture
Appellant patient sought review of an order of the Circuit
Court for Orange County (Florida) that dismissed her medical
malpractice action against appellees, a physician and hospital,
for failure to prosecute under Fla. R. Civ. P. 1.420(e).
Overview
Appellant brought a medical malpractice suit against
appellees, a physician and a hospital. Appellees later filed
motions to dismiss the suit for failure io prosecute pursuant to
Fla. R. Civ. P. 1.420(e) which required that all actions in
which no record activity had occurred for a period of one year
would be dismissed by the court. The trial court granted
appellees’ motions. Appellant sought review and argued that
appellee physician's premature motion to dismiss, filed on the
last day of the one-year time period, constituted record
activity sufficient to preclude dismissal of her suit. The court
disagreed and held that a motion to dismiss for failure to
prosecute which was premature was not sufficient to preclude
dismissal for failure to prosecute because it was not intended
and reasonably calculated to hasten the cause to judgment.
The court therefore affirmed the dismissal of appellant's suit.
Outcome
The court affirmed the dismissal of appellant's suit because it
held that a motion to dismiss for failure to prosecute which
was premature was not sufficient to preclude dismissal for
failure to prosecute because it was not intended and
reasonably calculated to hasten the cause to judgment.
LexisNexis® Headnotes
Civil Procedure > Dismissal > Involuntary
Dismissals > Failure to Prosecute
Civil Procedure > Dismissal > Involuntary
Dismissals > General Overview
HNI| (&] Involuntary Dismissals, Failure to Prosecute
Fla. R. Civ. P. 1.420(e) states that 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 one year 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
narties imlece a ctinnlatiqn ctaving the action ic annroved hy
parece, UELCSS 2 SUPLSUOR Saying ete SCUOR IS Spprcves Sy
the court or a stay order has been filed or a party shows good
cause in writing at least five days before the hearing on the
motion why the action should remain pending. Mere inaction
for a period of less than one year shall not be sufficient causePage 2 of 4
495 So. 2d 202, *202; 1986 Fla. App. LEXIS 9522, **1
for dismissal for failure to prosecute.
Civil Procedure > ... > Pleadings > Time
Limitations > Computation of Time
Civil Procedure > ... > Pleadings > Time
Limitations > General Overview
HN2(a] Time Limitations, Computation of Time
The general rule for computing the time within which a thing
must be done is to count the time by excluding the day on
which the initial act occurred and include the corresponding
future day.
Civil Procedure > ... > Pleadings > Time
Limitations > General Overview
HIN3(%] Pleadings, Time Limitations
When the last day for performing an act falls on a Saturday,
Sunday or legal holiday, the time for performance is extended
to the end of the next day which is neither a Saturday, Sunday
or legal holiday. Fla. R. Civ. P. 1.090(a).
Civil Procedure > ... > Pleadings > Time
Limitations > General Overview
HN) Pleadings, Time Limitations
Black's Law Dictionary defines "year" as the period in which
the revolution of the earth round the sun, and the
accompanying changes in the order of nature, are completed.
Generally, when a statute speaks of a year, 12 calendar, and
not lunar, months are intended. The year is either
astronomical, ecclesiastical, or regnal, beginning on the Ist of
January, or 25th of March, or the day of the sovereign's
accession. The civil year differs from the astronomical, the
latter being composed of 365 days, five hours, 48 minutes, 46
seconds and a fraction, while the former consists sometimes
of 365 days, and at others, in leap-years, of 366 days. When
the period of a "year" is named, a calendar year is generally
intended, but the subject-matter or context of statute or
contract in which the term is found or to which it relates may
Mine fhe meannione
@uei iS ineaning.
Civil Procedure > Dismissal > Involuntary
Dismissals > Failure to Prosecute
Civil Procedure > Pleading & Practice > Motion
Practice > General Overview
Civil Procedure > Dismissal > Involuntary
Dismissals > General Overview
Civil Procedure > Dismissal > Involuntary
Dismissals > Motions
HNS|#] Involuntary Dismissals, Failure to Prosecute
Record activity sufficient to preclude dismissal must be an
affirmative act that is reasonably calculated to hasten the suit
to judgment. A motion to dismiss for failure to prosecute
which is premature does not fall within this category, it does
not achieve the termination of the litigation and, for purposes
AE in he thin entree met ew ee Ee
OL WE TWIG, UNE Preimaure TOUGH IS a iunty.
Civil Procedure > Dismissal > Involuntary
Dismissals > Failure to Prosecute
Civil Procedure > Dismissal > Involuntary
ni
issals > General Qver
iow
Civil Procedure > Dismissal > Involuntary
Dismissals > Motions
HN6[a| Involuntary Dismissals, Failure to Prosecute
A prematurely filed motion to dismiss for lack of prosecution
iS Oi ine type OF FecoId activity Wi
period addressed in the rule, because it is not the type of
activity intended and reasonably calculated to hasten the
cause to judgment.
Counsel: Richard A. Bokor, for Appellant.
Mason H. Grower, III, Hill and Grower, P.A., for Appellee,
Cerezo.
No Appearance, for Appellee Orlando Regional Medical
Center, inc.
Judges: Orfinger, J. Cobb and Cowart, J.J., concur.Page 3 of 4
495 So. 2d 202, *202; 1986 Fla. App. LEXIS 9522, **1
Opinion by: ORFINGER
Opinion
[*202] Plaintiff Diane L. Carter appeals from an order
dismissing her action for failure to prosecute. Fla.R.Civ.P.
1.420(e). | We affirm.
[**2] Carter filed a medical malpractice action on February
23, 1984, naming appellees Cerezo and Orlando Regional
Medical Center, Inc. (Orlando Regional) as defendants. On
Manday Tahrnarr 26 1085 Carazn filad a mation ty di
Mouuay, PCOIUaY 20, 1700, LLICLO HCG G TUOI tO GISUHSS
for failure to prosecute. On Tuesday, February 26, 1985,
Orlando Regional filed its motion to dismiss for failure to
prosecute. Both motions alleged that there had been no record
activity for a period of one year from the filing of the suit.
The trial court granted both motions and dismissed the action.
Citing to Zentmeyer v. Ford Motor Company, Inc., 464 So.2d
673 _(Fia. 5th DCA i985), appeilant first contends that
Cerezo's motion, filed on February 25, 1985, was premature
because the one year period from the filing of the complaint
on February 23, 1984 did not end until the corresponding
February 23, 1985, a Saturday, [*203] thus extended through
Monday, February 25, 1985. 7 In Zentmeyer, we held:
"NI Rule 1.420(e) states:
Failure to Prosecute. All actions in which it appears on the face of
the record that no activity by filing of pleadings, order of court or
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 stipulation staying the action is approved by the
court or a stay order has been filed or a party shows good cause in
writing at least five days before the hearing on the motion why the
action should remain pending. Mere inaction for a period of less than
one year shall not be sufficient cause for dismissal for failure to
prosecute,
2HN3[-#] When the last day for performing an act falls on a
Saturday, Sunday or legal holiday, the time for performance is
extended to the end of the next day which is neither a Saturday,
Sunday or legal holiday. Rule, 1.090(a), Fla.R.Civ.P.
HNIF| The general rule for computing the time within
which a thing must be done is to count the time by
excluding the day on which the initial act occurred and
include the corresponding future day. Scarlett v.
Frederick, 147 Fla. 407, 3 So.2d [**3] 165 (1941);
Yohnson v. Mortgage Investors of Washington, 410 So.2d
341 (Fla__2d DCA 1982). See also, Fla.R.Civ.P.
1.090(a).
Rananca tha lact ranard antivitey asonerad an Ontahar &
Because ue ast TeCora acuviry GCCurrea Oh UCwWoer 6,
1982, the one year period did not begin to run until
October 7, 1982 and would not have expired until the
end of the day on the following October 6. Therefore the
motion to dismiss was filed one day too soon, and was
thus premature. Johnson, supra.
The order dismissing the cause of action for failure to
prosecute is reversed, and the cause is remanded for
further proceedings.
464 So.2d at 673, 674.
However, the period of one vear in the present case involves
a leap year, making February 23, 1985 the 366th day
following the date of the last record activity. This was not
the [**4] case in Zenimeyer where the period of one year was
the usual period of 365 days. Accordingly, appellee Cerezo
has also cited to Zentmeyer, arguing that the one year period
expired on Friday, February 22, 1985, 365 days after the
filing of appellant's action. It is appellant's position that by
ciearly stating “a period of one year,” the ruie requires that the
period be 365 days, even during leap year. We cannot accept
this interpretation of the rule.
There is no legislative definition of the term "year," nor do the
Florida Rules of Civil Procedure define the term. HN4¥]
Black's Law Dictionary defines "year" as follows:
Year. The period in which the revolution of the earth
round the sun, and the accompanying changes in the
order of nature, are completed. Generally, when a statute
speaks of a year, twelve calendar, and not lunar, months
are intended. The year is either astronomical,
ecclesiastical, or regnal, beginning on the Ist of January,
or 25th of March, or the day of the sovereign's accession.
The civil year differs from the astronomical, the latter
being composed of three hundred and sixty-five days,
five hours, forty-eight minutes, forty-six seconds and a
fraction, [**5] while the former consists sometimes of
three hundred and sixty-five days, and at others, in leap-Page 4 of 4
495 So. 2d 202, *203; 1986 Fla. App. LEXIS 9522, **5
years, of three hundred and sixty-six days.
When the period of a "year" is named, a calendar year is
generally intended, but the subject-matter or context of
statute or contract in which the term is found or to which
it relates may alter its meaning.
Blacks Law Dictionary 1448 (rev. Sth ed. 1979).
We can only conclude that in the context in which it is used, a
"period of one year" in Rule 1.420(e) includes both regular
and leap years. Because the fluctuation of the length of a year
is comprised within the very definition of a "year," the rule
need not make an express exception for "leap year." Thus,
applying the rule in Zentmeyer, the period ended on February
23, 1985 and was extended by Rule 1.090(a) to Monday,
February 25, 1985. Appellee Cerezo's motion was filed one
day too soon.
Thic canclncian however dee not dicnace of the cace hefara
Tans CORCUSION NOWEVES COlS NOL Cispose Of Ine CASS OCIOLe
us. By any calculation, Orlando Regional's motion filed on
February 26, 1985 was not premature. Appellant argues that
Cerezo's motion, filed February 25, was "record activity"
within the one year period, so that Orlando Regional's [**6]
motion should not have been granted. In support of this
position, appellant cites Johnson _v. Mortgage Investors _of
Washington, 410 So.2d 541 (Fla. 2d DCA 1982), which does
stand for that proposition. However, the Second District
recently receded from that position in Fleming v. [*204]
Barnett Bank of East Polk County, 3 490 So.2d 126 (Fla. 2d
DCA 1986) (en banc), where the court stated:
The concern which prompted our en banc hearing is the
principle that HNS[{*F] record activity sufficient to
preclude dismissal must be an affirmative act that is
reasonably calculated to hasten the suit to judgment.
Harris v. Winn Dixie Stores, Inc., 378 So.2d 90 (Fla. Ist
DCA 1979). A motion to dismiss for failure to prosecute
which is premature does not fall within this category, it
does not achieve the termination of the litigation and, for
purposes of the rule, the premature motion is a nullity.
We therefore recede from the statement in Johnson _v.
Mortgage Investors of Washington, supra, 410 So.2d 541
(Fla. 2d DCA 1982) that a prematurely-filed motion to
dismiss for lack of prosecution constitutes record
activity.
3In Fleming, the last record activity took place on February 10,
1984. Thus the extra day in that leap year came into play as it does
here. The court concluded, without discussion, that the critical date
was February 10, 1985, the same date which we would arrive at by
using the method of calculation discussed in this case and in
Zentmeyer.
[**7] In Inman, Inc. v. Miami_Dade Water _and_ Sewer
Authority, 489 So.2d 218 (Fla. 3d DCA 1986) the Third
District followed Fleming and held that a motion to dismiss
filed before the expiration of one year from the last record
activity is not itself record activity sufficient to preclude a
subsequent dismissal. The First District has taken the opposite
view. In Gant v. Tallahassee Memorial Regional Medical
Center, 490 So.2d 1020 (Fla. Ist DCA 1986), the court held
that a motion to dismiss for lack of prosecution, filed
prematurely, was sufficient record activity to preclude the
subsequent granting of a motion to dismiss. We agree with the
Second and Third J Districts, and with the dissenting judge in
Gant, that HN6[*] a prematurely filed motion to dismiss for
lack of prosecution is not the type of record activity which
will toll the one year period addressed in the rule, because it is
not the type of activity intended and reasonably calculated to
hasten the cause to judgment. Gulf Appliance Distributors,
Inc. v. Long, 53 So.2d_706 (Fla._1951), We thus find
ourselves in express and direct conflict with Gant on the same
question of law.
The trial judge therefore correctly [**8] dismissed the action
for lack of prosecution, so the order appealed from is
AFFIRMED.
COBB and COWART, J.J., concur.
End of Document
Preview
Filing # 137101565 E-Filed 10/22/2021 01:24:18 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA DOUGLAS J. SANCHEZ AND ANA PAULA CORREA SANCHEZ, Plaintiffs, v. CASE NO.: 50-2020-CA-012652-XXXX-M FAMILY SECURITY INSURANCE COMPANY, INC., Defendant. / NOTICE OF FILING Defendant, Family Security Insurance Company, by and through the undersigned counsel, hereby gives notice of filing of the attached supplemental authority, in support of Defendant?s Motion for Summary Indoment dated Inlv 7; 2021. CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZA FLED 4NINDINNDA N4.94.49 DNA PILL. PAL DLA VUUINE TT, PL, VUOL IIE mDnuecy, ULL, 1Urecieue! Ulett ritCERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was served by e-Filing with the Clerk of Court and via Florida e-Filing Portal to the following, this 22"! day of October, 2021. Max Messinger, Esq. Aleisha Hodo, Esq. KANNER & PINTALUGA, P.A. 925 S. Federal Highway, Sixth Floor Boca Raton, FL 33432 mmessinger( @k pattorne y.com ahodo@kpattorney.com FirstPartyEService@kpattorney.com (Counsel for Plaintiffs) s/ Jessica Kerbel H. JACEY KAPS, CIPP/US,PCIP Florida Bar No.: 0056677 E-mail: jkaps@rumberger.com (primary) docketingmiami@rumberger.com and jkapssecy@rumberger.com (secondary) MONICA C. SEGURA Florida Bar No.: 0021267 E-mail: msegura@rumberger.com (primary) docketingmiami@rumberger.com and msegurasecy@rumberger.com (secondary) JESSICA KERBEL Florida Bar No.: 124152 ikerbel@rumberger.com (primary) docketingmiami@rumberger.com and jkerbelsecy@rumberger.com (secondary) RUMBERGER, KIRK, & CALDWELL, P.A. Brickell City Tower, Suite 3000 80 Southwest 8th Street Miami, Florida 33130-3037 Tel: 305.358.5577 Fax: 305.371.7580 Attorneys for DefendantCarter v. Cerezo Court of Appeal of Florida, Fifth District August 28, 1986, Filed No. 85-634 Reporter 495 So. 2d 202 *; 1986 Fla. App. LEXIS 9522 **; 11 Fla. L. Weekly 1876 DIANE L. CARTER, etc., Appellant, v. LIZARDO CEREZO, M_D., et al., Appellees Prior History: [**1] Appeal from the Circuit Court for Orange County, William C. Gridley, Judge. Case Summary Procedural Posture Appellant patient sought review of an order of the Circuit Court for Orange County (Florida) that dismissed her medical malpractice action against appellees, a physician and hospital, for failure to prosecute under Fla. R. Civ. P. 1.420(e). Overview Appellant brought a medical malpractice suit against appellees, a physician and a hospital. Appellees later filed motions to dismiss the suit for failure io prosecute pursuant to Fla. R. Civ. P. 1.420(e) which required that all actions in which no record activity had occurred for a period of one year would be dismissed by the court. The trial court granted appellees’ motions. Appellant sought review and argued that appellee physician's premature motion to dismiss, filed on the last day of the one-year time period, constituted record activity sufficient to preclude dismissal of her suit. The court disagreed and held that a motion to dismiss for failure to prosecute which was premature was not sufficient to preclude dismissal for failure to prosecute because it was not intended and reasonably calculated to hasten the cause to judgment. The court therefore affirmed the dismissal of appellant's suit. Outcome The court affirmed the dismissal of appellant's suit because it held that a motion to dismiss for failure to prosecute which was premature was not sufficient to preclude dismissal for failure to prosecute because it was not intended and reasonably calculated to hasten the cause to judgment. LexisNexis® Headnotes Civil Procedure > Dismissal > Involuntary Dismissals > Failure to Prosecute Civil Procedure > Dismissal > Involuntary Dismissals > General Overview HNI| (&] Involuntary Dismissals, Failure to Prosecute Fla. R. Civ. P. 1.420(e) states that 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 one year 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 narties imlece a ctinnlatiqn ctaving the action ic annroved hy parece, UELCSS 2 SUPLSUOR Saying ete SCUOR IS Spprcves Sy the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient causePage 2 of 4 495 So. 2d 202, *202; 1986 Fla. App. LEXIS 9522, **1 for dismissal for failure to prosecute. Civil Procedure > ... > Pleadings > Time Limitations > Computation of Time Civil Procedure > ... > Pleadings > Time Limitations > General Overview HN2(a] Time Limitations, Computation of Time The general rule for computing the time within which a thing must be done is to count the time by excluding the day on which the initial act occurred and include the corresponding future day. Civil Procedure > ... > Pleadings > Time Limitations > General Overview HIN3(%] Pleadings, Time Limitations When the last day for performing an act falls on a Saturday, Sunday or legal holiday, the time for performance is extended to the end of the next day which is neither a Saturday, Sunday or legal holiday. Fla. R. Civ. P. 1.090(a). Civil Procedure > ... > Pleadings > Time Limitations > General Overview HN) Pleadings, Time Limitations Black's Law Dictionary defines "year" as the period in which the revolution of the earth round the sun, and the accompanying changes in the order of nature, are completed. Generally, when a statute speaks of a year, 12 calendar, and not lunar, months are intended. The year is either astronomical, ecclesiastical, or regnal, beginning on the Ist of January, or 25th of March, or the day of the sovereign's accession. The civil year differs from the astronomical, the latter being composed of 365 days, five hours, 48 minutes, 46 seconds and a fraction, while the former consists sometimes of 365 days, and at others, in leap-years, of 366 days. When the period of a "year" is named, a calendar year is generally intended, but the subject-matter or context of statute or contract in which the term is found or to which it relates may Mine fhe meannione @uei iS ineaning. Civil Procedure > Dismissal > Involuntary Dismissals > Failure to Prosecute Civil Procedure > Pleading & Practice > Motion Practice > General Overview Civil Procedure > Dismissal > Involuntary Dismissals > General Overview Civil Procedure > Dismissal > Involuntary Dismissals > Motions HNS|#] Involuntary Dismissals, Failure to Prosecute Record activity sufficient to preclude dismissal must be an affirmative act that is reasonably calculated to hasten the suit to judgment. A motion to dismiss for failure to prosecute which is premature does not fall within this category, it does not achieve the termination of the litigation and, for purposes AE in he thin entree met ew ee Ee OL WE TWIG, UNE Preimaure TOUGH IS a iunty. Civil Procedure > Dismissal > Involuntary Dismissals > Failure to Prosecute Civil Procedure > Dismissal > Involuntary ni issals > General Qver iow Civil Procedure > Dismissal > Involuntary Dismissals > Motions HN6[a| Involuntary Dismissals, Failure to Prosecute A prematurely filed motion to dismiss for lack of prosecution iS Oi ine type OF FecoId activity Wi period addressed in the rule, because it is not the type of activity intended and reasonably calculated to hasten the cause to judgment. Counsel: Richard A. Bokor, for Appellant. Mason H. Grower, III, Hill and Grower, P.A., for Appellee, Cerezo. No Appearance, for Appellee Orlando Regional Medical Center, inc. Judges: Orfinger, J. Cobb and Cowart, J.J., concur.Page 3 of 4 495 So. 2d 202, *202; 1986 Fla. App. LEXIS 9522, **1 Opinion by: ORFINGER Opinion [*202] Plaintiff Diane L. Carter appeals from an order dismissing her action for failure to prosecute. Fla.R.Civ.P. 1.420(e). | We affirm. [**2] Carter filed a medical malpractice action on February 23, 1984, naming appellees Cerezo and Orlando Regional Medical Center, Inc. (Orlando Regional) as defendants. On Manday Tahrnarr 26 1085 Carazn filad a mation ty di Mouuay, PCOIUaY 20, 1700, LLICLO HCG G TUOI tO GISUHSS for failure to prosecute. On Tuesday, February 26, 1985, Orlando Regional filed its motion to dismiss for failure to prosecute. Both motions alleged that there had been no record activity for a period of one year from the filing of the suit. The trial court granted both motions and dismissed the action. Citing to Zentmeyer v. Ford Motor Company, Inc., 464 So.2d 673 _(Fia. 5th DCA i985), appeilant first contends that Cerezo's motion, filed on February 25, 1985, was premature because the one year period from the filing of the complaint on February 23, 1984 did not end until the corresponding February 23, 1985, a Saturday, [*203] thus extended through Monday, February 25, 1985. 7 In Zentmeyer, we held: "NI Rule 1.420(e) states: Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or 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 stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute, 2HN3[-#] When the last day for performing an act falls on a Saturday, Sunday or legal holiday, the time for performance is extended to the end of the next day which is neither a Saturday, Sunday or legal holiday. Rule, 1.090(a), Fla.R.Civ.P. HNIF| The general rule for computing the time within which a thing must be done is to count the time by excluding the day on which the initial act occurred and include the corresponding future day. Scarlett v. Frederick, 147 Fla. 407, 3 So.2d [**3] 165 (1941); Yohnson v. Mortgage Investors of Washington, 410 So.2d 341 (Fla__2d DCA 1982). See also, Fla.R.Civ.P. 1.090(a). Rananca tha lact ranard antivitey asonerad an Ontahar & Because ue ast TeCora acuviry GCCurrea Oh UCwWoer 6, 1982, the one year period did not begin to run until October 7, 1982 and would not have expired until the end of the day on the following October 6. Therefore the motion to dismiss was filed one day too soon, and was thus premature. Johnson, supra. The order dismissing the cause of action for failure to prosecute is reversed, and the cause is remanded for further proceedings. 464 So.2d at 673, 674. However, the period of one vear in the present case involves a leap year, making February 23, 1985 the 366th day following the date of the last record activity. This was not the [**4] case in Zenimeyer where the period of one year was the usual period of 365 days. Accordingly, appellee Cerezo has also cited to Zentmeyer, arguing that the one year period expired on Friday, February 22, 1985, 365 days after the filing of appellant's action. It is appellant's position that by ciearly stating “a period of one year,” the ruie requires that the period be 365 days, even during leap year. We cannot accept this interpretation of the rule. There is no legislative definition of the term "year," nor do the Florida Rules of Civil Procedure define the term. HN4¥] Black's Law Dictionary defines "year" as follows: Year. The period in which the revolution of the earth round the sun, and the accompanying changes in the order of nature, are completed. Generally, when a statute speaks of a year, twelve calendar, and not lunar, months are intended. The year is either astronomical, ecclesiastical, or regnal, beginning on the Ist of January, or 25th of March, or the day of the sovereign's accession. The civil year differs from the astronomical, the latter being composed of three hundred and sixty-five days, five hours, forty-eight minutes, forty-six seconds and a fraction, [**5] while the former consists sometimes of three hundred and sixty-five days, and at others, in leap-Page 4 of 4 495 So. 2d 202, *203; 1986 Fla. App. LEXIS 9522, **5 years, of three hundred and sixty-six days. When the period of a "year" is named, a calendar year is generally intended, but the subject-matter or context of statute or contract in which the term is found or to which it relates may alter its meaning. Blacks Law Dictionary 1448 (rev. Sth ed. 1979). We can only conclude that in the context in which it is used, a "period of one year" in Rule 1.420(e) includes both regular and leap years. Because the fluctuation of the length of a year is comprised within the very definition of a "year," the rule need not make an express exception for "leap year." Thus, applying the rule in Zentmeyer, the period ended on February 23, 1985 and was extended by Rule 1.090(a) to Monday, February 25, 1985. Appellee Cerezo's motion was filed one day too soon. Thic canclncian however dee not dicnace of the cace hefara Tans CORCUSION NOWEVES COlS NOL Cispose Of Ine CASS OCIOLe us. By any calculation, Orlando Regional's motion filed on February 26, 1985 was not premature. Appellant argues that Cerezo's motion, filed February 25, was "record activity" within the one year period, so that Orlando Regional's [**6] motion should not have been granted. In support of this position, appellant cites Johnson _v. Mortgage Investors _of Washington, 410 So.2d 541 (Fla. 2d DCA 1982), which does stand for that proposition. However, the Second District recently receded from that position in Fleming v. [*204] Barnett Bank of East Polk County, 3 490 So.2d 126 (Fla. 2d DCA 1986) (en banc), where the court stated: The concern which prompted our en banc hearing is the principle that HNS[{*F] record activity sufficient to preclude dismissal must be an affirmative act that is reasonably calculated to hasten the suit to judgment. Harris v. Winn Dixie Stores, Inc., 378 So.2d 90 (Fla. Ist DCA 1979). A motion to dismiss for failure to prosecute which is premature does not fall within this category, it does not achieve the termination of the litigation and, for purposes of the rule, the premature motion is a nullity. We therefore recede from the statement in Johnson _v. Mortgage Investors of Washington, supra, 410 So.2d 541 (Fla. 2d DCA 1982) that a prematurely-filed motion to dismiss for lack of prosecution constitutes record activity. 3In Fleming, the last record activity took place on February 10, 1984. Thus the extra day in that leap year came into play as it does here. The court concluded, without discussion, that the critical date was February 10, 1985, the same date which we would arrive at by using the method of calculation discussed in this case and in Zentmeyer. [**7] In Inman, Inc. v. Miami_Dade Water _and_ Sewer Authority, 489 So.2d 218 (Fla. 3d DCA 1986) the Third District followed Fleming and held that a motion to dismiss filed before the expiration of one year from the last record activity is not itself record activity sufficient to preclude a subsequent dismissal. The First District has taken the opposite view. In Gant v. Tallahassee Memorial Regional Medical Center, 490 So.2d 1020 (Fla. Ist DCA 1986), the court held that a motion to dismiss for lack of prosecution, filed prematurely, was sufficient record activity to preclude the subsequent granting of a motion to dismiss. We agree with the Second and Third J Districts, and with the dissenting judge in Gant, that HN6[*] a prematurely filed motion to dismiss for lack of prosecution is not the type of record activity which will toll the one year period addressed in the rule, because it is not the type of activity intended and reasonably calculated to hasten the cause to judgment. Gulf Appliance Distributors, Inc. v. Long, 53 So.2d_706 (Fla._1951), We thus find ourselves in express and direct conflict with Gant on the same question of law. The trial judge therefore correctly [**8] dismissed the action for lack of prosecution, so the order appealed from is AFFIRMED. COBB and COWART, J.J., concur. End of Document