JAMES MALER, JR., A MINOR CHILD BY AND THROUGH HIS MOTHER AND NATURAL GUARDIAN JONI MALER, INDIVIDUALLY, AND JAMES MALER, SR., INDIVIDUALLY, APPELLANTS,
v.
BAPTIST HOSPITAL OF MIAMI, INC. AND DAVID GAIR, M.D., APPELLEES
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Trial court erred in refusing to consider a late-filed affidavit of good cause for lack of prosecution where defendants showed no prejudice and the affidavit demonstrated good cause based on parallel litigation activity in an identical lawsuit between the same parties.
A trial court must consider a late-filed affidavit of good cause under Fla.R.Civ.P. 1.420(e) when no prejudice to defendants is shown, and good cause exists where a lawsuit is filed as protective coverage for an identical pending lawsuit with extensive record activity.
[1] A late-filed affidavit of good cause under Fla.R.Civ.P. …
[2] Good cause for lack of record activity exists under Fla.R.Civ.P. …
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Join FLexlaw to unlock all legal intelligenceJames Maler, Jr., by his parents, sued Baptist Hospital of Miami and Dr. David Gair. The plaintiffs filed a protective lawsuit while an identical laws…
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PER CURIAM.
We reverse the order under review and remand for further proceedings upon a holding that: (1) the trial court erred in refusing to consider an affidavit of good cause filed by the plaintiffs/appellants one day prior to the hearing on the defendants/appellees’ motions to dismiss for lack of prosecution under Fla.R.Civ.P. 1.420(e) because no prejudice to the defendants/appellees was shown due to the aforesaid late-filed affidavit (the affidavit was filed four days late under Fla.R.Civ.P. 1.420(e)), see Shanley v. Allen, 346 So. 2d 548, 549 (Fla. 1st DCA 1976), and (2) the subject affidavit states good cause for the lack of record activity for over one year in the instant case because it appears, without dispute, there was extensive record activity in an identical lawsuit between the same parties, the instant lawsuit being a “protective” lawsuit in the event the other lawsuit was dismissed. See American Eastern Corp. v. Henry Blanton, Inc., 382 So. 2d 863, 865 (Fla. 2d DCA 1980); Estate of Mills v. Florida Ins. Guar. Ass’n, 378 So. 2d 301, 302 (Fla. 3d DCA 1979); cf. Funke v. Lopez, 432 So. 2d 787, 788 (Fla. 3d DCA 1983) (non-record activity in a separate lawsuit against different (not same, as here) party not “sufficient good cause”); Perez v. Cohen, 362 So. 2d 985 (Fla. 3d DCA 1978) (participation in appeal of a related, though not identical, cause insufficient to prevent dismissal under Rule 1.420(e)); Brinholz v. Steisel, 338 So. 2d 862 (Fla. 3d DCA 1976) (where plaintiff filed identical lawsuit to one pending on appeal, abatement, not dismissal, of the second action was appropriate).
REVERSED AND REMANDED.
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Morales v. Sperry Rand Corp., 578 So. 2d 1143 (Fla. 4th DCA 1991)…the postal system and the clerk’s office due to the Christmas season as an excuse for late service. He reasons that the delay was beyond his control and that in any event the appellees were not prejudiced. See Maler v. Baptist Hosp. of Miami, Inc., 532 So. 2d 79 (Fla. 3d DCA 1988); Middleton v. Silverman, 430 So. 2d 981 (Fla. 3d DCA 1983). The appellees assert that the prejudice issue was not specifically argued to the trial court, but argue that prejudice need not be addressed anyway where the plaintiff i…
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Insua v. Chantres, 665 So. 2d 288 (Fla. 3d DCA 1995)…n. This was plain error. It is well settled that the pendency of another related action provides justification for apparent non-activity, precluding dismissal for failure to prosecute under Rule 1.420(e). See Maler v. Baptist Hosp. of Miami, Inc., 532 So. 2d 79 (Fla. 3d DCA 1988); Estate of Mills v. Florida Ins. Guar. Ass’n, 378 So. 2d 301 (Fla. 3d DCA 1979); Smith v. Saint George Island Gulf Beaches, Inc., 343 So. 2d 847 (Fla. 1st DCA 1976). Under the circumstances, the trial court’s refusal to reinstate…
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Seabury v. Cheminova, Inc., 868 So. 2d 625 (Fla. 2d DCA 2004)…. 2d at 976 (citing Rubenstein v. Iolab Corp., 642 So. 2d 818 (Fla. 3d DCA 1994)). The Third District’s philosophy is also apparent in several other decisions from that court, including Maler by and through Maler v. Baptist Hospital of Miami, Inc., 532 So. 2d 79, 79 (Fla. 3d DCA 1988), in which the court held that the plaintiff had demonstrated good cause for avoiding dismissal for lack of prosecution because “there was extensive record activity in an identical lawsuit between the same parties, the instant…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Am. E. Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980)
- Standford Birnholz v. Steisel, 338 So. 2d 862 (Fla. 3d DCA 1976)
- Perez v. Ran M. Cohen, 362 So. 2d 985 (Fla. 3d DCA 1978)
- Funke v. Lopez, 432 So. 2d 787 (Fla. 3d DCA 1983)
- Shanley v. Allen, 346 So. 2d 548 (Fla. 1st DCA 1976)
- Sherrod DRY Wall & Cosmopolitan Mut. Ins. Co. v. Reeves, 378 So. 2d 301 (Fla. 1st DCA 1979)
- Est. of Henry Lee Mills v. Fla. Ins. Guar. Ass'n & Stevenson Ins. Assocs., Inc., 378 So. 2d 301 (Fla. 3d DCA 1979)