ROBERTO ORTIZ, APPELLANT,
v.
BISCAYNE MEDICAL CENTER, INC. AND EMERGENCY PHYSICIAN ASSOCIATES, P.A., APPELLEES
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The court held that a prior appellate court order filed in the circuit court constitutes record activity, preventing dismissal for lack of prosecution if less than a year has passed since its filing.
The defendants moved to dismiss the medical malpractice action for lack of prosecution, alleging no activity for one year. However, an order from the …
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BASKIN, Judge.
Roberto Ortiz, plaintiff in the medical malpractice action below, appeals an order dismissing the cause for lack of prosecution. We reverse.
On May 29, 1979, the defendants, appel-lees herein, filed a motion to dismiss for lack of prosecution, claiming that no activity had occurred in the case for a period of one year. The record discloses, however, that this court, by order dated June 29, 1978, and filed in the circuit court on August 18, 1978, denied a petition for writ of common law certiorari.
The order of this court which denied the petition for writ of certiorari and was filed in the circuit court is record activity within the meaning of Rule 1.420(e), Florida Rules of Civil Procedure. See Brennan v. Ryter, 339 So. 2d 661 (Fla. 1st DCA 1976). Less than a year elapsed between the recording of this court’s order and the motion to dismiss. “Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.” Fla.R.Civ.P. 1.420(e).
The order of dismissal is therefore reversed and the cause remanded for further proceedings.
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Murphy White Dairy, Inc. v. Simmons, 405 So. 2d 298 (Fla. 4th DCA 1981)…he cause, and the Dairy seeks review of that order.3 We reverse. We reject the Simmonses’ contention that the filing in the trial court of our order dismissing the Dairy’s appeal, clearly record activity, see Ortiz v. Biscayne Medical Center, Inc., 385 So. 2d 1146 (Fla. 3d DCA 1980), is not, as required, see Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980), record activity directed towards disposition of the case and is thus insufficient to preclude dismissal. The Dairy’s act of appeali…
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Miami-Dade Cnty. v. Javi Leo Maurice Walker, 948 So. 2d 68 (Fla. 3d DCA 2007)…Murphy White Dairy, Inc. v. Simmons, 405 So. 2d 298 (Fla. 4th DCA 1981)(holding that plaintiff's act of filing in the circuit court a copy of appellate court’s order dismissing appeal constitutes record activity); Ortiz v. Biscayne Med. Ctr., Inc., 385 So. 2d 1146, 1146 (Fla. 3d DCA 1980)(holding that order of appellate "court which denied the petition for writ of certiorari and was filed in the circuit court is record activity within the meaning of Rule 1.420(e), Florida Rules of Civil Procedure”)(emphasis a…
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Elegele v. Halbert, 890 So. 2d 1272 (Fla. 5th DCA 2005)…which had no tendency to move case to conclusion, and same was true though appeal did not succeed in accomplishing that end; such record activity was sufficient to preclude dismissal for lack of prosecution); Ortiz v. Biscayne Medical Center, Inc., 385 So. 2d 1146 (Fla. 3d DCA 1980)(filing in trial court of the appellate court order denying plaintiffs petition for common law certiorari is record activity precluding dismissal). Elegele apparently did not file any documents from this court in the trial court a…
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- Brennan v. Ryter, 339 So. 2d 661 (Fla. 1st DCA 1976)