JEROME SILVERMAN, APPELLANT,
v.
EQUIFAX SERVICES, INC., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a notice of deposition, even if cancelled and directed to a non-party, constitutes record activity sufficient to prevent dismissal for lack of prosecution under Rule 1.420(e).
Appellant filed a notice of deposition for an out-of-state witness thirteen days before the one-year period for record activity expired. The depositio…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Florida Rule Of Civil Procedure 1.420(E) (Dismissal For Lack Of Prosecution) cases and more on FLexlaw
BASKIN, Judge.
Appellant Silverman appeals the dismissal of his action pursuant to Florida Rule of Civil Procedure 1.420(e), requiring dismissal unless there has been record activity during the preceding year. Thirteen days before the one-year period expired, Silverman filed a Notice of Taking of Deposition directed to an out-of-state, non-party witness. Because Silverman was ill, the deposition was cancelled. The witness was alleged to be indispensable to Silverman’s claim. Equi-fax argues that Silverman’s notice constituted “passive effort” and that dismissal was proper. We reverse.
In American Salvage & Jobbing Co. v. Salomon, 367 So. 2d 716 (Fla.3d DCA 1979), this court held:
It is obvious that the effect of the amendment is to preclude a trial court from exercising its ... inherent, discretionary power to dismiss a case for failure to prosecute, when, as in this case, there is activity of record within one year prior to dismissal. Id. at 717. In Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979), the court stated that a notice of taking deposition of a party, even if cancelled, advanced the action. We believe the same principle applies here. The notice of deposition, although not directed to a party, involved an important witness and, even though can-celled, advanced the action. See also Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla.1972).
For these reasons, we reverse the trial court’s dismissal and remand for further proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hall v. Metro. Dade Cnty., 760 So. 2d 1051 (Fla. 3d DCA 2000)…position constitutes record activity which will defeat a motion to dismiss for lack of prosecution. See Hannon v. Nassr, 701 So. 2d 445 (Fla. 3d DCA 1997); Utset v. Campos, 548 So. 2d 834, 837 (Fla. 3d DCA 1989); Silverman v. Equifax Services, Inc., 420 So. 2d 928, 929 (Fla. 3d DCA 1982). Other cases in accord include Cravens v. Kulubis, 694 So. 2d 780, 781 (Fla. 2d DCA 1997); Milligan v. Osborne, 682 So. 2d 706, 706 (Fla. 5th DCA 1996); Q.I.P. Corp. v. Berger, 547 So. 2d 1286, 1288 (Fla. 4th DCA 1989); and H…
-
Gold Coast Graphics, Inc. v. Rachline, 448 So. 2d 544 (Fla. 3d DCA 1984)…AM. The order dismissing the complaint for lack of prosecution with prejudice is reversed upon a holding that: (a) the notice of taking a deposition constituted activity sufficient to preclude dismissal, Silverman [*545] v. Equifax Services, Inc., 420 So. 2d 928 (Fla. 3d DCA 1982); (b) a dismissal for failure to prosecute may not be “with prejudice,” McDaniel v. Onkey, 422 So. 2d 70 (Fla. 2d DCA 1982). Reversed.…
Authorities Cited
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979)
- Am. Salvage & Jobbing Co., Inc. v. Jacque Salomon, 367 So. 2d 716 (Fla. 3d DCA 1979)