JOANN SCHLAKMAN, APPELLANT,
v.
HELLIWELL, MELROSE & DEWOLF, A PARTNERSHIP, DOUGLAS S. LYONS AND JORDEN MELROSE & SCHUETTE, P.A., A PROFESSIONAL ASSOCIATION, APPELLEES
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Joann Schlakman appealed the dismissal of her legal malpractice action for lack of prosecution. The court reversed, holding that a plaintiff's physical disability constitutes good cause to refuse dismissal under Florida Rules of Civil Procedure Rule 1.420(e), requiring adjudication on the merits.
Physical disability of a plaintiff constitutes good cause justifying a trial court's refusal to dismiss for failure to prosecute under Rule 1.420(e), Florida Rules of Civil Procedure. The trial court abused its discretion and the dismissal order should be reversed to allow adjudication on the merits.
[1] Physical disability of a plaintiff or plaintiff's attorney constitutes good cause, justifying a trial court's refusal to dismiss for failure to prosecute.
[2] A trial court abuses its discretion by dismissing a case for lack of prosecution when the plaintiff's physical disability prevented diligent prosecution.
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Join FLexlaw to unlock all legal intelligence“Physical disability of a plaintiff or plaintiff's attorney constitutes good cause, justifying a trial court's refusal to dismiss for failure to prosecute under Rule 1.420(e), Florida Rules Civil Procedure.”
Establishes the legal standard that physical disability is good cause to refuse dismissal for lack of prosecution.
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Join FLexlaw to unlock all legal intelligenceSchlakman was severely and permanently injured in a slip-and-fall at Burger King on May 5, 1977. The defendants, law firms, undertook representation b…
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[*15] PER CURIAM.
The appellant seeks review of a final order dismissing her complaint for lack of prosecution.
On May 5, 1977, the appellant was allegedly, severely and permanently injured when she slipped and fell at a Burger King restaurant. The appellees undertook the representation of the appellant’s claim against Burger King but allegedly failed to settle or institute litigation within the Statute of Limitations time period, causing the appellant to lose her cause of action.
On January 26,1984, the appellant filed a legal malpractice action against the appellees through her attorney L. Joseph Hoffman, who later withdrew from the case.
On April 25, 1985, the appellant filed a Notice of Appearance on her own behalf. Subsequently, in May of 1985, the appellant’s file was turned over to another law firm which eventually decided in September of 1985 that the firm would not be able to handle the case. Throughout this entire time period, the appellant continued to be periodically bedridden due to her injuries as a result of her fall at Burger King, as well as a thyroid condition.
On May 27, 1986, the appellee filed a motion to dismiss for lack of prosecution to which the appellant responded, alleging that due to the severity of her injuries she was completely dependent upon her attorneys. The appellee’s motion to dismiss was granted by the trial judge.
We reverse.
Physical disability of a plaintiff or plaintiff’s attorney constitutes good cause, justifying a trial court’s refusal to dismiss for failure to prosecute under Rule 1.420(e), Florida Rules Civil Procedure. Barnes v. Ross, 386 So. 2d 812 (Fla. 3d DCA 1980); Douglas v. Eiriksson, 347 So. 2d 1074 (Fla. 1st DCA 1977); Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So. 2d 126 (Fla. 3d DCA 1975). Although the degree of the disability required in order to constitute good cause for the trial court to retain the cause on the court’s calendar is unclear, the collective decisions have resolved this question in favor of adjudicating a case on its merits. Therefore, the trial court abused its discretion and the order dismissing the appellant’s claim should be reversed.
Reversed.
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Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990)…no record activity for more than a year before this motion, the trial court found that the personal representative’s ill-health and ultimate death constituted good cause for the action to remain pending. See Schlakman v. Helliwell, Melrose & DeWolf, 519 So. 2d 14 (Fla. 3d DCA 1987). The order denying this first motion to dismiss for failure to prosecute was filed on December 28, 1987.2 The next activity in the record occurred 364 days later. On December 27, 1988, the plaintiff filed a request to produce and…
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Claude v. Pitts, Jr., 561 So. 2d 297 (Fla. 2d DCA 1990)…ourt abused its discretion by not dismissing this case for failure to prosecute. The record contains evidence to support the trial court’s finding that this failure related to Mr. Pastore's poor health. See Schlakman v. Helliwell, Melrose, & DeWolf, 519 So. 2d 14 (Fla. 3d DCA 1987). .Mr. Pitts did not raise or argue a statute of limitations defense based on section 95.11(2)(c), Florida Statutes (1985). Since the loans, as extended by the mortgage, had no specific maturity date and the Pastores’ demands to p…
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Lenion v. Allyson Claire Calohan, 652 So. 2d 461 (Fla. 1st DCA 1995)…Physical disability of a plaintiff or plaintiffs attorney constitutes good cause, justifying a trial court’s refusal to dismiss for failure to prosecute under Rule 1.420(e), Florida Rules of Civil Procedure.” Schlakman v. Hellmell, Melrose & DeWolf, 519 So. 2d 14 (Fla. 3d DCA 1987). See Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So. 2d 126 (Fla. 3d DCA 1975) and Douglas v. Eiriksson, 347 So. 2d 1074 (Fla. 1st DCA 1977). “The plaintiffs double bypass heart surgery and subsequent period of rehabilitatio…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Barnes v. Dr. Patricia Ross & the Ladies Ctr. of S. Fla., Inc., 386 So. 2d 812 (Fla. 3d DCA 1980)
- ELI Einbinder, Inc. v. Miami Crystal ICE Co., 317 So. 2d 126 (Fla. 3d DCA 1975)
- Douglas v. Arneda Eiriksson, 347 So. 2d 1074 (Fla. 1st DCA 1977)