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nullity because it failecl to comply with Ela.R.Civ.P. 1.420(e),
which states:
(e) Failure to Prosecute. All actions
in wnich it appears on the face of the record _
that no activity by filing of pl~adinqs, order
of court or otherwise has occurred for a per-
iod of one year shall be dismissed b the .
court on its own motion or on motion o anv
interested person, whether a party to the ac-
tion or not, after reasonable notice to the
arties, unless a art shows oad c.ause in
writing, at east ive avs e ore t e earing
on the motion, wh the action should remain
pen inq. Mere inaction or a period o ess
than one year shall not be sufficient ca~se
for dismissal for failure to prosecute.
{empha~is supplied).
Althouqh it is true-that either an interested party, or the
trial court on its own motion, may move to dismiss an action ~
under the rule, it is equally clear that the rule contemplates
notice and a hearinq prior to a determination by the trial - ~
court. Harris v. Filman, 358 So.2d 905 (E'la. 2nd DCA 1978);
Fields v. Fields, 291 So.2d 663 (Fla. lst DCA 1974). The- ~
clerk's notice did not set a he~aring date in its letter of
August llth or at anytime thereafter, nor did it advise the ap-
pellee of the five day requirement. Even assuminq the clerk's
notice to be a court motion, where the trial court fails to con-
y duct a hearing on its o4an "motion" to dismiss, and no timely
~ ~ order is entered in accordance with the motion, the trial court
, •
~ has effectively abandoned its motion. ~ Thus, even though there '
's
~ was a lack of record activity during the more than one year per-
i
fi
~
~ iod between the filing of appellant's answer on July 5, 1977,
s
~ and the filing of Russell's motion t~ set the cause for trial on
a
~
~ September 12, 1978, there was insufficient action taken to dis-
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~ miss the cause. The informal clerk's notice was not a self exe-
~
~ cuting motion and it was necessary to conduct a hearing on the
issue af "good cause" before an order of dismissal could be en-
tered properly. St~alabeY v. Memorial Hosaital of South erowarc~
9
Hospital District, 253 So.2d 712 (Fla. 4th DCA 1971).
i
The filing of appellant's own motion to dismiss on
i
~ September 25, 1978 co~~ld not resuit in a proper order of dis-
~
~
s missal either, since at that point in time there was.record ,
~
~
. activity by Russell only 14 days earlier (i.e., the motion to
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