ARTHUR P. KARCHER, JR., SHIRLEY KARCHER, JANE J. HILL AND ROBERT R. DOSS, APPELLANTS,
v.
F.W. SCHINZ AND ASSOCIATES, INC. AND BOISE CASCADE CORPORATION, APPELLEES
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Homeowners appealed dismissal of their defective siding lawsuit for failure to prosecute. The court affirmed the dismissal, holding that a single interrogatory filed after a year of inactivity did not constitute sufficient affirmative record activity to prevent dismissal under Florida Rule 1.420(e).
The court held that the single interrogatory did not constitute affirmative record activity designed to progress the suit to judgment, and therefore did not prevent dismissal for failure to prosecute. The interrogatory merely sought clarification of denials to prior discovery requests from a year earlier and reflected minimal prosecution of the overall case.
[1] A trial court may dismiss an action for failure to prosecute when there has been a prolonged period of record inactivity, even if that period is less than one year, if th…
[2] An interrogatory seeking the basis for denials made in response to a prior request for admissions, filed a year after the request and its answer, does not constitute affi…
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Join FLexlaw to unlock all legal intelligence“mere inaction for a period of less than one year shall not be deemed sufficient cause for dismissal”
States the baseline rule under Florida Rule 1.420(e), establishing that dismissal requires more than just the passage of time
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Join FLexlaw to unlock all legal intelligenceKarcher, owners of townhouse units built by Schinz using Boise Cascade siding, filed suit on March 1, 1981 alleging the siding was defective and dimin…
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MILLS, Judge.
This is an appeal from a final order dismissing the action for failure to prosecute. We affirm.
The appellants (herein referred to collectively as Karcher) are owners of townhouse units built by F.W. Schinz and Associates (Schinz), who utilized “sawtooth” siding manufactured by Boise Cascade. On 1 March 1981, Karcher initiated this action by filing a complaint alleging that the siding was defective and had diminished the value of the townhouse units.
After various procedural developments not germane to this appeal, on 10 May 1982 the trial court entered an order setting aside a default judgment that had been entered against Boise Cascade, and accepting the filing of Boise Cascade’s answer and the cross claim by Schinz. Following this, there was no record activity for nineteen months until 2 December 1983 when Karcher filed a request for admissions to Boise Cascade. Although Karcher served a motion to produce directed to Schinz on 16 November 1982 and a request for production directed to Boise Cascade on 27 October 1983, no papers were filed in the court and thus they were not made part of the record. Boise Cascade filed its answer to the request for admissions on 9 January 1984. Then,from 9 January 1984 until 4 January 1986, there was again a period of record inactivity.
On 4 January 1985, Karcher filed a single interrogatory directed to Boise Cascade requesting that a detailed explanation be given for the denials that were entered in response to Karcher’s request for admissions, which had been served on 2 December 1983 and answered a year earlier on 9 January 1984.
The next action taken was by Boise Cascade who filed a motion to dismiss for failure to prosecute on 9 January 1985. Thereafter, on 28 March 1985, Karcher filed a response to the motion to dismiss and a motion to compel directed against Boise Cascade. The motion to dismiss was granted on 1 April 1985 and this appeal followed.
Rule 1.420(e), Fla.R.Civ.P., governs the procedure for dismissal for failure to prosecute and it provides that “mere inaction for a period of less than one year shall not be deemed sufficient cause for dismissal.” Nevertheless, the rule as it has been interpreted by Gulf Appliance Distributors, Inc. v. Long, 53 So. 2d 706, 707 (Fla.1951), and its progeny, requires that the activity of record be an affirmative act designed to progress the suit to judgment in order to preclude dismissal.
Therefore, the key issue in this appeal is whether Karcher’s interrogatory filed on 4 January 1985 constitutes affirmative record activity. We find, as did the trial court, that it does not. The single interrogatory merely sought the basis for denials made by Boise Cascade in response to a request for admissions by Karcher, both of which had been filed one year earlier. See, Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979) (one question interrogatory seeking an update to prior interrogatories found to be activity only intended to keep the case on the court’s docket). The conclusion that the January 1985 interrogatory was not a genuine measure to hasten the suit to disposition is further supported by the overall record which shows very minimal prosecution by Karcher. The remaining points urged by Karcher are without merit and do not require our discussion.
AFFIRMED.
SMITH and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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del Duca v. Anthony, 587 So. 2d 1306 (Fla. 1991)…regard to the test to be applied in determining when and under what circumstances a cause may be dismissed for a lack of prosecution when discovery has been sought within the one-year period. Conflict exists with Karcher v. F.W. Schinz & Associates, 487 So. 2d 389 (Fla. 1st DCA 1986), and Philips v. Marshall Berwick Chevrolet, Inc., 467 So. 2d 1068 (Fla. 4th DCA 1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the decision of the district court in this case. The facts reflect that on Ju…
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Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990)…ated questions asked in earlier interrogatories were only “passive efforts to keep the suit on the docket, and were not genuine measures to hasten the suit to judgment.” Harris, 378 So. 2d at 94. Thereafter, in Karcher v. F. W. Schinz & Associates, 487 So. 2d 389 (Fla. 1st DCA 1986), the first district held that a single interrogatory which asks a party to explain the basis for its denial of an earlier request for admissions is not sufficient action to avoid dismissal under rule 1.420(e). The first district…
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Liuzzo v. Crapo, 504 So. 2d 480 (Fla. 1st DCA 1987)…ellee’s argument that the trial court’s order should be construed as finding that appellant’s interrogatories did not constitute genuine record activity designed to progress the suit to judgment. Compare Karcher v. F. W. Schinz And Associates, Inc., 487 So. 2d 389 (Fla. 1st DCA 1986). Appellee’s motion to dismiss does not allege that the interrogatories were disingenuous, nor does the record contain anything suggesting such. Moreover, the order of dismissal makes no reference to the interrogatories. Accordi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979)