SWANN v. SHAMROCK ENGINEERING, 521 So.2d 361 (Fla.App. 5 Dist. 1988)

RICHARD R. SWANN, TRUSTEE, APPELLANT, v. SHAMROCK ENGINEERING AND POST, BUCKLEY, SCHUH AND JERNIGAN, INC., APPELLEES.

No. 87-1142.District Court of Appeal of Florida, Fifth District.
March 10, 1988.

Appeal from the Circuit Court, Seminole County, Kenneth M. Leffler, J.

Edmund T. Baxa, Jr., of Swann Haddock, P.A., Orlando, for appellant.

James C. Mize, Jr., of Bull Mize, Orlando, for appellee Shamrock Engineering, Inc.

John C. Briggs of Fisher, Rushmer, Werrenrath, Keiner, Wack
Dickson, P.A., Orlando, for appellee Post, Buckley, Schuh and Jernigan, Inc.

DAUKSCH, Judge.

This is an appeal from an order of dismissal for failure to prosecute. Fla.R. Civ.P. 1.420(e). We reverse.

The trial judge, not the one who signed the order on appeal, ordered that “the Motion for Separate Trials . . . is hereby granted. Once the Plaintiffs’ case in chief has been concluded, the parties may subsequently notice the cross-claims and third party claim/s for trial.” It is the dismissal for failure to prosecute these cross-claims and third-party claims which is on appeal here.

There is no evidence in this record to support appellees’ contention that the “case in chief” has been concluded. Although a settlement apparently was reached, and the matter was obviously not to go to trial, all of the paperwork apparently was not finalized and delivered. In view of this it is our determination the trial judge erred in dismissing the matter. The order of dismissal

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is reversed and this cause remanded for trial.

REVERSED and REMANDED.

SHARP, C.J., and ORFINGER, J., concur.