ANTHONY MARTINEZ, APPELLANT,
v.
JOAQUIN FUENMAYOR, M.D.; HAROLD KUSHNER, M.D., AND ANTHONY MANIGLIA, M.D., APPELLEES
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.
Florida appellate court affirmed dismissal of medical malpractice action for lack of prosecution where plaintiff failed to show record activity for one year and provided no written good cause excuse as required by rule.
Dismissal for lack of prosecution under Fla.R.Civ.P. 1.420(e) is proper when there is no record activity for one year and no written good cause is shown, regardless of oral argument at the dismissal hearing.
[1] Motion to strike sham pleadings filed by non-party mistakenly served as defendant does not constitute record activity sufficient to prevent dismissal for lack of prosecut…
[2] Oral argument at hearing on motion to dismiss cannot cure plaintiff's failure to provide written good cause for lack of record activity as required by Fla.R.Civ.P. …
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligencePlaintiff Martinez filed a medical malpractice action against three physicians. For one year prior to defendants' motion to dismiss, there was no reco…
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 Record Activity cases and more on FLexlaw
PER CURIAM.
The final orders dismissing the action below for lack of prosecution under Fla.R.Civ.P. 1.420(e) are affirmed based on the following briefly stated legal analysis.
First, there was no record activity in the instant action for one year prior to the filing of appellees’ motion to dismiss, save for a motion to strike sham pleadings and an affidavit in support thereof which was filed by a non-party who was mistakenly served as a defendant in this cause. The aforesaid motion and affidavit in no way advanced the cause to resolution and cannot, in our view, preclude a dismissal under the above rule. See, e.g., Inman, Inc. v. Miami Dade Water & Sewer Auth., 489 So. 2d 218 (Fla. 3d DCA 1986); Overseas Dev., Inc. v. AmeriFirst Fed. Sav. & Loan Ass’n, 433 So. 2d 587, 589 (Fla. 3d DCA), pet. for rev. dismissed, 438 So. 2d 833 (Fla. 1983).
Second, there was no good cause shown in writing for the lack of record activity in this cause as required by Fla.R. Civ.P. 1.420(e). Indeed, appellant’s written response to the motion to dismiss made no effort to excuse the lack of record activity in this cause; appellant’s oral argument at the hearing on the said motion cannot cure this fatal defect. Shields v. Moore, 352 So. 2d 139, 140 (Fla. 4th DCA 1977).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
-
Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)…Fla.L.Weekly S42 (Fla. Jan. 16,1992). If not therein, cite to the slip opinion: Traylor v. State, No. 70,051 (Fla. Jan. 15,1992). (b) Florida District Courts of Appeal. (1) Sotolongo v. State, 530 So. 2d 514 (Fla. 2d DCA 1988); Buncayo v. Dribin, 533 So. 2d 935 (Fla. 3d DCA 1988). (2) For recent opinions not yet published in Southern Reporter, cite to Florida Law Weekly: Myers v. State, 16 Fla.L.Weekly D1507 (Fla. 4th DCA June 5, 1991). If not therein, cite to the slip opinion: Myers v. State, No. 90-1092…
-
Gloriann Wilson v. Eva J. Salamon, M.D., 923 So. 2d 363 (Fla. 2005)…he trial court with good cause in writing to avoid dismissal. In the absence of good cause, the trial court is bound to dismiss the case. See Nesbitt v. Community Health of South Dade, Inc., 566 So. 2d 1, 2 (Fla. 3d DCA 1989); Martinez v. Fuenmayor, 533 So. 2d 935 (Fla. 3d DCA 1988). Sheen relies on Metropolitan Dade County v. Hall, for the proposition that the trial court lacked jurisdiction to move to dismiss the action because there had been record activity in the case during the year preceding the filing…
-
Hunter v. Hunter, 540 So. 2d 235 (Fla. 3d DCA 1989)…n of these warring parents the independent representation they so desperately need. Fla.R.P. & G.P. 5.120(a). “The role of a guardian ad litem is to act on an ex parte basis in defending the interests of the person he represente.” Buncayo v. Dribin, 533 So. 2d 935 (Fla. 3d DCA 1988) (emphasis supplied). For reasons not clear, the court-appointed guardian ad litem conducted no in vestigations on behalf of the children and was effectively absent throughout the trial. Although the trial court did receive testimo…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Overseas Dev., Inc. v. Amerifirst Fed. Sav. & Loan Ass'n, 433 So. 2d 587 (Fla. 3d DCA 1983)
- Shields v. Moore, 352 So. 2d 139 (Fla. 4th DCA 1977)
- Inman, Inc. v. Miami Dade Water & Sewer Auth. & Post, 489 So. 2d 218 (Fla. 3d DCA 1986)