H. JULIAN BROCK, APPELLANT,
v.
ASSOCIATES FINANCE, INC., AND RICHARD ROBBINS, APPELLEES
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Brock appealed the dismissal of his civil action for lack of prosecution. The trial court dismissed despite Brock's showing of severe physical disability (emphysema, bedridden, unable to withstand court stress) as good cause for inactivity. The appellate court reversed, holding that the trial court abused its discretion by disregarding valid good cause and incorrectly relying on a discovery deposition to justify dismissal.
The trial court abused its discretion in dismissing the action. While a one-year period of inactivity was established, the plaintiff's severe physical disability constituted good cause excusing his failure to prosecute. The discovery deposition, not intended or sufficient to perpetuate testimony for trial purposes, could not negate the plaintiff's showing of good cause.
[1] A trial court abuses its discretion by dismissing an action for failure to prosecute when the plaintiff's physical disability constitutes good cause excusing the inactivi…
[2] A discovery deposition taken for discovery purposes is generally insufficient to perpetuate a party's testimony for use at trial, even if filed.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“despite this finding, it was an abuse of discretion to dismiss the action where the plaintiffs physical disability constituted good cause excusing his failure to prosecute”
Establishes the core holding that good cause based on medical disability bars dismissal for lack of prosecution despite one year of inactivity
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Join FLexlaw to unlock all legal intelligenceBrock, the plaintiff, was deposed by defendants in October 1989 at his home, during which he revealed severe heart and lung problems requiring frequen…
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PER CURIAM.
Brock, the plaintiff below, seeks review of a final order dismissing his action for lack of prosecution. We reverse.
The record reveals that the defendants deposed the plaintiff at his home in October 1989. In the course of the deposition, the plaintiff revealed that he was in poor health due to heart and lung problems that required frequent hospitalizations and the use of oxygen around the clock. The defendants filed the deposition in October 1990, intending to use it at trial. Soon after filing the deposition, there commenced a one year period of inactivity that concluded when the defendants filed a motion under Florida Rule of Civil Procedure 1.420(e) to dismiss the plaintiffs action for failure to prosecute.1 In response, the plaintiff cited his poor health and inability to communicate with counsel as good cause why his action should remain pending. An affidavit from the plaintiffs wife detailed his long medical history and asserted that he was unable to communicate during the period of record inactivity. A treating physician indicated that the plaintiff had severe emphysema that had rendered him completely disabled, bedridden, and unable to undergo the stress of court proceedings. Apparently unconvinced, the trial court dismissed the action noting “that the trial could have occurred with the plaintiff, as an unavailable witness, testifying through the use of his deposition transcript.”
The trial court correctly concluded that there was no record activity over a period of one year. However, despite this finding, it was an abuse of discretion to dismiss the action where the plaintiffs physical disability constituted good cause excusing his failure to prosecute. See Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla.1972); Schlakman v. Helliwell, Melrose & DeWolf, 519 So. 2d 14 (Fla. 3d DCA 1987). The trial court appears to have rejected the plaintiff's showing of good cause in the erroneous belief that the plaintiff could present his case through the October 1989 deposition. This discovery deposition, which was subsequently filed by the defendants for use at trial, was not intended to perpetuate the plaintiff's testimony for use at trial, nor was it sufficient for such a purpose. Thus, the existence of the deposition should not have negated the plaintiff’s showing of good cause.
The order dismissing the plaintiff’s action is reversed, and the case is remanded to the trial court.
ZEHMER, BARFIELD and MINER, JJ., concur. . Rule 1.420(e) provides in pertinent part:
All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person ... unless ... a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Martin v. Putnam Cnty. Blood Bank, Inc., 683 So. 2d 657 (Fla. 5th DCA 1996)…here there is no record activity for one year. Non-record activity is not, 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 ca…
Authorities Cited
- Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla. 1972)
- Schlakman v. Helliwell, 519 So. 2d 14 (Fla. 3d DCA 1987)