A & W ELECTRIC OF MIAMI, INC., AND WILLIAM RIGGENBACH, INDIVIDUALLY AND AS SHAREHOLDER AND DIRECTOR OF A & W ELECTRIC OF MIAMI, INC., APPELLANTS,
v.
STEVE ABRAIRA, INDIVIDUALLY AND AS OFFICER AND DIRECTOR OF A & W ELECTRIC OF MIAMI, INC., APPELLEE
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PER CURIAM.
The plaintiff’s double bypass heart surgery and subsequent period of rehabilitation was a sufficient excuse for failure to prosecute his claim within one year. Physical disability of a plaintiff justifies a failure to bring a case to trial and may suffice as a good defense to a motion to dismiss for failure to prosecute, even where no continuance was sought prior to the expiration of the one-year period of activity contemplated by Florida Rule of Civil Procedure 1.420(e). Schlakman v. Helliwell, Melrose & DeWolf, 519 So. 2d 14 (Fla. 3d DCA 1987); Douglas v. Eiriksson, 347 So. 2d 1074 (Fla. 1st DCA 1977). See also Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla.1972); Barnes v. Ross, 386 So. 2d 812 (Fla. 3d DCA 1980). Owing to the severity of the plaintiff’s illness which rendered him unable to participate in discovery proceedings, the dismissal for lack of prosecution was an abuse of discretion.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lenion v. Allyson Claire Calohan, 652 So. 2d 461 (Fla. 1st DCA 1995)…. Eiriksson, 347 So. 2d 1074 (Fla. 1st DCA 1977). “The plaintiffs double bypass heart surgery and subsequent period of rehabilitation was a sufficient excuse for failure to prosecute his claim within one year.” A & W Elec, of Miami, Inc. v. Abraira, 567 So. 2d 36 (Fla. 3d DCA 1990). The cases do not draw a bright line. “Neither the length nor severity of the illness is stated in Einbinder. In Douglas, the extent of the medical problem of the plaintiff was undetermined and the length of the hospitalization u…
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Kleinschmidt v. United States Fid. & Guar. Ins. Co., 599 So. 2d 208 (Fla. 3d DCA 1992)…e the plaintiff-appellant has certain physical infirmities, they did not constitute disability of the magnitude necessary to constitute good cause for failure to effect service for a period of 22 months. See A & W Electric of Miami, Inc. v. Abraira, 567 So. 2d 36 (Fla. 3d DCA 1990); Schlakman v. Helliwell, Melrose & DeWolf 519 So. 2d 14, 15 (Fla. 3d DCA 1987). We see no basis on which to disturb the trial court’s ruling on that point, or on the other issues raised by appellant. Affirmed.…
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Martin v. Putnam Cnty. Blood Bank, Inc., 683 So. 2d 657 (Fla. 5th DCA 1996)…however, the only way to establish “good cause.” Another basis for good cause recognized in case law is “calamity” or “disability.” See, e.g., Brock v. Associates Fin., Inc., 617 So. 2d 440 (Fla. 1st DCA 1993); A & W Elec. of Miami Inc. v. Abraira, 567 So. 2d 36 (Fla. 3d DCA 1990); Barnes v. Ross, 386 So. 2d 812 (Fla. 3d DCA 1980). The lower court initially analogized this case to such cases and found “good cause” not to dismiss the case. On rehearing, the court withdrew this decision based on the admittedl…
Authorities Cited
- Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla. 1972)
- Barnes v. Dr. Patricia Ross & the Ladies Ctr. of S. Fla., Inc., 386 So. 2d 812 (Fla. 3d DCA 1980)
- Douglas v. Arneda Eiriksson, 347 So. 2d 1074 (Fla. 1st DCA 1977)
- Schlakman v. Helliwell, 519 So. 2d 14 (Fla. 3d DCA 1987)