               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


JAMES L. TATE, JR.,                          )
                                             )
              Appellant,                     )
                                             )
v.                                           )          Case No. 2D17-4266
                                             )
WALTER A. MCNEIL,                            )
SECRETARY, DEPARTMENT OF                     )
CORRECTIONS,                                 )
                                             )
              Appellee.                      )
                                             )

Opinion filed April 10, 2019.

Appeal from the Circuit Court for
Hardee County; Marcus J. Ezelle, Judge.

James L. Tate, Jr., pro se.

Ashley Moody, Attorney General,
Tallahassee, and Erich Messenger,
Assistant Attorney General, Tampa,
for Appellee.


ATKINSON, Judge.


              James L. Tate, Jr., appeals the trial court's order dismissing his complaint

for lack of prosecution. Because there was record activity to avoid dismissal under
Florida Rule of Civil Procedure 1.420(e), we reverse and remand for further

proceedings.

               Tate is in the custody of the Florida Department of Corrections. In his

complaint, Tate alleges that his constitutional rights were violated when he was

transferred from the Hardee Correctional Institution to the Jefferson Correctional

Institution as retaliation for filing grievance complaints.

               From August 24, 2012, to May 12, 2017, there was no record activity in

the case. On May 12, 2017, the trial court entered an order setting a hearing for lack of

prosecution. In its order, the trial court indicated that the case would be dismissed

unless Tate showed good cause why the case should remain pending at least five days

before the hearing scheduled for August 2, 2017. On June 16, 2017, Tate filed an

"Order to Grant Order to Show Cause Coversheet" and a "Motion for Evidentiary

Hearing."

               On July 12, 2017, the trial court entered an order denying Tate's motion

for an evidentiary hearing, in which it stated the following: "Given the lack of record

activity since August of 2012, it does not appear that the case is ripe for an evidentiary

hearing." The trial court then referenced its order scheduling a hearing for lack of

prosecution "for August 2, 2017 to ascertain the current status of this case." On

September 22, 2017, the trial court dismissed the case without prejudice for lack of

prosecution.

               Florida Rule of Civil Procedure 1.420(e) governs the trial court's dismissal

of a complaint for failure to prosecute:

               In all actions in which it appears on the face of the record
               that no activity by filing of pleadings, order of court, or



                                             -2-
              otherwise has occurred for a period of 10 months, and no
              order staying the action has been issued nor stipulation for
              stay approved by the court, any interested person, whether a
              party to the action or not, the court, or the clerk of the court
              may serve notice to all parties that no such activity has
              occurred. If no such record activity has occurred within 10
              months immediately preceding the service of such notice,
              and no record activity occurs within 60 days immediately
              following the service of such notice, and if no stay was
              issued or approved prior to the expiration of such 60-day
              period, the action 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
              parties, unless a party shows good cause in writing at least 5
              days before the hearing on the motion why the action should
              remain pending. Mere inaction for a period of less than 1
              year shall not be sufficient cause for dismissal for failure to
              prosecute.

(Emphasis added.) We review de novo "whether record activity has occurred within the

meaning of rule 1.420(e) because 'it involves the construction of a procedural rule.' "

Citibank, N.A. v. Konigsberg, 149 So. 3d 1185, 1185–86 (Fla. 2d DCA 2014) (quoting

Weston TC LLLP v. CNDP Mktg. Inc., 66 So. 3d 370, 371–72 (Fla. 4th DCA 2011)).

"Record activity is defined as the 'filing of pleadings, order of court, or otherwise.' "

Zuppardo v. Dunlap & Moran, P.A., 186 So. 3d 1067, 1068 (Fla. 2d DCA 2016).

              The test for determining whether record activity has occurred "during the

ten-month period and during the sixty-day grace period is a bright-line rule 'under which

any filing of record is sufficient to preclude dismissal.' " Konigsberg, 149 So. 3d at 1186

(quoting Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 792 (Fla. 2011)).

Although former interpretations of rule 1.420(e) required record activity that

"affirmatively" moved the case forward, a plain reading of the rule does not distinguish

between "passive or active" record activity. Wilson v. Salamon, 923 So. 2d 363, 368

(Fla. 2005). As such, the trial court need only make "a cursory review of the record



                                             -3-
because 'there is either activity on the face of the record or there is not.' " Konigsberg,

149 So. 3d at 1186 (quoting Wilson, 923 So. 2d at 368).

              Here, prior to the trial court's order setting a hearing for lack of

prosecution, Tate had not been previously notified that no record activity had occurred

for a period of ten months prior to May 12, 2017. As such, that order served as the

notice of his failure to prosecute required by the rule. This gave Tate a sixty-day grace

period from service of that notice to make a filing of record to preclude dismissal.

              While the rule does provide for the showing of good cause in writing why

the action should remain pending—as the trial court ordered here—that only applies if

there has been no record activity during the sixty days following notice of failure to

prosecute. The opportunity to show cause serves as an exception to the requirement

that the action be dismissed after such time period elapses. Here, because Tate

created record activity within sixty days of the notice of his failure to prosecute, he was

not required to show good cause five days before the hearing on August 2, 2017.

              Because Tate's June 16, 2017, filings constituted record activity within the

sixty-day grace period, the trial court erred by dismissing the case for failure to

prosecute. Accordingly, we reverse the order dismissing Tate's complaint for failure to

prosecute and remand for further proceedings.

              Reversed and remanded.



CASANUEVA and SILBERMAN, JJ., Concur.




                                             -4-
