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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



MICHAEL ZUPPARDO,                   )
                                    )
           Appellant,               )
                                    )
v.                                  )                   Case No. 2D14-6018
                                    )
DUNLAP AND MORAN, P.A.,             )
                                    )
           Appellees.               )
___________________________________ )

Opinion filed February 12, 2016.

Appeal from the Circuit Court for Sarasota
County; Charles E. Williams, Judge.

Anthony S. Lefco, Sarasota, for Appellant.

Maureen G. Pearcy of Hinshaw &
Culbertson, LLP, Coral Gables, and Lori
Heim of Hinshaw & Culbertson, LLP,
Tampa, for Appellee.



CASE, JAMES R., Associate Senior Judge.

              Michael Zuppardo appeals the order dismissing his civil complaint for

failure to prosecute. Because the trial court failed to adhere to the plain language of

Florida Rule of Civil Procedure 1.420(e), we reverse.

              Zuppardo filed a civil suit against Dunlap and Moran, P.A., in March 2007.

There have been multiple periods of inactivity since the suit was filed. After over two
years of inactivity, on September 11, 2014, the trial court sent a notice pursuant to rule

1.420 indicating that there had been no record activity in the case for ten months. The

notice also indicated that

              [i]f no record activity occurs within sixty (60) days
              immediately following the service of this motion and notice,
              and if no stay is issued or approved prior to the expiration of
              such 60-day period, this action shall be dismissed at a
              hearing . . . .
              A party may file a showing of good cause why this action
              should remain pending at least five (5) days prior to the
              hearing . . . .

              In response, on October 9, 2014, Zuppardo filed a notice of filing which set

forth a new address for Zuppardo's counsel and attached a brief filed in a related case

in an attempt to explain the delay in this case. In serving the notice, Zuppardo's counsel

misspelled opposing counsel's email address. The trial court's electronic filing system

generated an alert that prompted Zuppardo's counsel to serve the notice in an alternate

manner. Zuppardo's counsel then emailed and mailed via postal service the notice to

Dunlap and Moran's counsel. Additionally, Zuppardo filed a motion to amend the

complaint sixty days after the inactivity order. But the motion did not have a proposed

amended complaint attached to it, as required by Florida Rule of Civil Procedure

1.190(a).

              Dunlap and Moran filed a response arguing that the case should be

dismissed because Zuppardo's filings were insufficient record activity due to the

technical deficiencies in each filing. On December 3, 2014, the trial court dismissed the

case incorporating the arguments presented in Dunlap and Moran's response. The trial

court made no further elaboration as to why Zuppardo's two filings were insufficient to

preclude dismissal as a matter of law.



                                           -2-
              Florida Rule of Civil Procedure 1.420(e), entitled "Failure to Prosecute,"

provides that when "it appears on the face of the record that no activity . . . has occurred

for a period of 10 months" and there is no stay in place, the court, clerk, or any

interested person "may serve notice to all parties that no such activity has occurred."

After the notice is served, if no record activity has occurred within sixty days, "the action

shall be dismissed by the court on its own motion or on the motion of any interested

person . . . unless a party shows good cause in writing at least [five] days before the

hearing on the motion why the action should remain pending." Id. However, the rule

further provides that "[m]ere inaction for a period of less than [one] year shall not be

sufficient cause for dismissal for failure to prosecute." Id. In other words, dismissal is

precluded if there has been record activity within the past year. Wilson v. Salamon, 923

So. 2d 363, 369 (Fla. 2005).

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

otherwise." Fla. R. Civ. P. 1.420(e). "The test for record activity 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.' " Citibank, N.A. v. Konigsberg, 149 So. 3d

1185, 1186 (Fla. 2d DCA 2014) (emphasis added) (quoting Chemrock Corp. v. Tampa

Elec. Co., 71 So. 3d 786, 792 (Fla. 2011)); see also Weston TC LLLP v. CNDP Mktg.

Inc., 66 So. 3d 370, 374-76 (Fla. 4th DCA 2011) (finding that even the filing of a notice

of absence constituted record activity that precluded dismissal); Diamond Drywall Sys.,

Inc. v. Mashan Contractors, Inc., 943 So. 2d 267, 269 (Fla. 3d DCA 2006) (holding that

an ex parte motion not served on the opposing party was record activity under rule

1.420(e)). Notably, previous interpretations of the rule required that any filings




                                            -3-
affirmatively move the case forward in order to preclude dismissal. See Wilson, 923 So.

2d at 365 (discussing the history of rule 1.420(e)). However, the rule does not

distinguish between active or passive record activity and generally requires "only a

cursory review of the record because 'there is either activity on the face of the record or

there is not.' " Citibank, N.A., 149 So. 3d at 1186 (quoting Wilson, 923 So. 2d at 368).

              Inarguably, Zuppardo filed a notice of filing and a motion for leave to

amend within the sixty-day grace period. While the defects in these pleadings may

have prevented them from affirmatively moving the case forward, the rule does not

require an analysis of a filing's substance. Once a pleading is timely filed the inquiry

ends. We recognize that this case has suffered multiple periods of inactivity and that

the trial court may have deemed that deficiencies existed in the timely filed pleadings,

but such considerations are irrelevant in analyzing whether record activity has occurred

under rule 1.420(e). The rule mandates only a cursory review of the record to

determine whether there has been "any filing of record during the applicable time

frame[s]." Chemrock Corp., 71 So. 3d at 791; see Citibank, N.A., 149 So. 3d at 1186.

Simply put, if there has been record activity, the trial court is precluded from dismissing

the case for failure to prosecute. Chemrock Corp., 71 So. 3d at 792. Therefore, the

trial court erred by examining the substance of the pleadings and exceeding the cursory

review mandated by the rule. Accordingly, we reverse the order dismissing Zuppardo's

complaint for failure to prosecute and remand for further proceedings.

              Reversed and remanded.


VILLANTI, C.J., and LaROSE, J., Concur.




                                            -4-
