DENNIS C. PAEDAE, JR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BENJAMIN A. EASTER, DECEASED, AND MFA INSURANCE COMPANY, APPELLANTS,
v.
JANICE L. VOLTAGGIO AND MARK JOSEPH HORAN, APPELLEES
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The trial court erred in setting aside its order of dismissal for failure to prosecute because the reasons provided by the plaintiffs did not constitute good cause.
[1] A dismissal for failure to prosecute is proper when no record activity has occurred for more than one year.
[2] Office errors, inadvertence, or lack of cooperation by a plaintiff do not constitute good cause for failure to prosecute.
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed a negligence suit after a traffic accident. After over a year of no record activity, the defendants moved to dismiss. The trial court…
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THOMPSON, Judge.
This is an appeal from a judgment which ensued after the trial judge set aside his prior order of dismissal for failure to prosecute. Appellants, the defendants below, allege that the trial court erred in determining that the plaintiffs had shown good cause for their failure to prosecute and in issuing an order setting aside the dismissal and reinstating the case. We agree and reverse.
The dismissal for failure to prosecute was proper, and since appellees failed to demonstrate good cause for the lack of any record activity for more than one year, the case should not have been reinstated and should not have proceeded to trial.
Appellees Voltaggio and Horan were the plaintiffs below. They were involved in a traffic accident with the decedent Easter in December 1978 in Pensacola. In April 1979 appellees filed suit in Escambia County alleging that Easter had negligently operated his motor vehicle causing the collision with them. Easter and his insurer, MFA Insurance Company, both filed answers in May 1979. In January 1981 Vol-taggio filed answers to a set of interrogatories propounded by defendants, and in January 1982 appellees moved to add their employer as a plaintiff.
After approximately 13 more months passed, appellants submitted a motion pursuant to Fla.R.Civ.P. 1.420(e) asking the court to dismiss the action for appellees’ failure to prosecute, and alleging that “it appears on the face of the record that no activity by the filing of pleadings, order of court or otherwise has occurred since January 11, 1982, and more than one year has elapsed without affirmative action in the case.” The court agreed that it did not appear from the record that the action had been prosecuted for one year arid ordered appellees to show good cause why the action should not be dismissed.
Appellees filed a “showing of good cause” stating that their attorney’s secretary had failed to notify him of the status of the case and that appellee Horan had been uncooperative in complying with discovery. The judge issued an order setting aside the dismissal and reinstating the case which eventually proceeded to trial.
Both parties agree that there was no record activity for over one year. The issue before us is whether the trial judge properly reinstated the case based on the reasons submitted by appellees for the delay.
The “good cause” offered by appel-lees for the failure to prosecute is not sufficient. Neither office errors nor inadvertence, nor lack of cooperation by a plaintiff have been held to constitute good cause. Railway Express Agency, Inc. v. Hoagland, 62 So. 2d 756 (Fla.1953) (no good cause shown by plaintiff’s lengthy absence in Europe, necessity for detailed audit before trial or attorney’s inadvertent delay); Shanley v. Allen, 346 So. 2d 548 (Fla. 1st DCA 1976) (no good cause shown by plaintiff’s attorney’s “misimpressions and erroneous assumptions”); Bakewell v. Shepard, 310 So. 2d 765 (Fla. 2d DCA 1975) (no good cause shown by misunderstandings between attorneys); Florida Power & Light Co. v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973) (no good cause shown by office errors, attorney’s inadvertent failure to prosecute or plaintiff’s change of counsel); Barrentine v. Vulcan Materials Co., 216 So. 2d 57 (Fla. 1st DCA 1968) (no good cause shown by litigant who was too busy or otherwise found it inconvenient to give attention to cause of action); Laug v. Murphy, 205 So. 2d 695 (Fla. 4th DCA 1968) (no good cause shown where parties were negotiating but had yet to reach a settlement); Conklin v. Boyd, 189 So. 2d 401 (Fla. 1st DCA 1966) (no good cause shown where secretary misfiled pleadings); Miller v. Hartley’s Inc., 97 So. 2d 211 (Fla. 3d DCA 1957) (no good cause shown by plaintiff’s change of counsel, first attorney’s refusal to surrender necessary papers, plaintiff being frequently out of town or plaintiff’s attorney being busy.)
The “good cause” standard applied in failure to prosecute cases is much stricter than the “excusable neglect” standard utilized to vacate a default judgment. Ap-pellees refer to the two areas as “analogous,” but the case law makes it clear they are not. The two cases upon which appellees place their primary reliance deal with the trial judge’s decision to vacate a default judgment against a defendant. Wood v. Fortune Ins. Co., 453 So. 2d 451 (Fla. 4th DCA 1984); Florida Aviation Academy v. Charter Air Center, Inc., 449 So. 2d 350 (Fla. 1st DCA 1984). Although none of the cases so state, it seems apparent that a court would be more reluctant to deny a defendant his day in court than to impose the same sanction on a dilatory plaintiff.
Because this issue is dispositive we need not reach appellants’ second point on appeal. Appellees failed to make the requisite showing of good cause why the action should remain pending, and the case should not have been reinstated. The judgment of the trial court is reversed.
MILLS and SMITH, JJ., concur.
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The Pub. Health Tr. OF Dade Cnty. v. Diaz, 529 So. 2d 682 (Fla. 1988)…GRIMES, Justice. This is a petition to review the decision in Diaz v. Public Health Trust of Dade County, 492 So. 2d 1082 (Fla.3d DCA 1986), because of conflict with Paedae v. Voltaggio, 472 So. 2d 768 (Fla. 1st DCA 1985), and 107 Group, Inc. v. Gulf Coast Paying & Grading, Inc., 459 So. 2d 466 (Fla. 1st DCA 1984). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Respondents (plaintiffs) instituted a medical malpractice action one day before…
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Havens v. Hendry Chambliss, 906 So. 2d 318 (Fla. 4th DCA 2005)…sy litigants inconvenienced by their causes of action, parties in mid-negotiation without resolution, misfilings by secretaries, plaintiffs change of counsel, and prior attorney refusal to surrender files to subsequent attorney. Paedae v. Voltaggio, 472 So. 2d 768, 769 (Fla. 1st DCA 1985) (citations omitted). Further, the Modellista court reasoned that “making a party [*320] bear the consequence of its lawyer’s fault is central to the principle of agency.” We recognize the harsh result here, but just as we c…
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Wynelle L. Sebree v. Schantz, 963 So. 2d 842 (Fla. 3d DCA 2007)…ssal.”). See also Freeman v. Toney, 608 So. 2d 863, 863 (Fla. 4th DCA 1992)(“[A] change of attorneys is not good cause, nor are claims that counsel changed offices, suffered secretarial changes and simply overlooked the case.”); Paedae v. Voltaggio, 472 So. 2d 768, 769 (Fla. 1st DCA 1985)(“Neither office errors nor inadvertence, nor lack of cooperation by a plaintiff have been held to constitute good cause.”); Industrial Trucks of Fla., Inc. v. Gonzalez, 351 So. 2d 744, 747 (Fla. 3d DCA [*848] 1977)(“Mere ina…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Fla. Aviation Acad. v. Charter AIR Ctr., Inc., 449 So. 2d 350 (Fla. 1st DCA 1984)
- Ry. Exp. Agency, Inc. v. Hoagland, 62 So. 2d 756 (Fla. 1952)
- Lenore Miller v. Hartley's, Inc., 97 So. 2d 211 (Fla. 3d DCA 1957)
- Laug v. Murphy, 205 So. 2d 695 (Fla. 4th DCA 1968)
- Bakewell v. Shepard, 310 So. 2d 765 (Fla. 2d DCA 1975)
- Glover v. State, 280 So. 2d 15 (Fla. 1st DCA 1973)
- Fla. Power & Light Co. v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973)
- Wood v. Fortune Ins. Co., 453 So. 2d 451 (Fla. 4th DCA 1984)
- Millard B. Conklin v. Boyd, 189 So. 2d 401 (Fla. 1st DCA 1966)
- Shanley v. Allen, 346 So. 2d 548 (Fla. 1st DCA 1976)