BARRY BUSH, ETC., APPELLANT,
v.
UNIVEST REAL ESTATE CORPORATION, ETC., ET AL., APPELLEES
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Barry Bush appealed the dismissal of his breach of contract action for lack of prosecution. The court reversed, holding that Bush's interrogatories filed one year into the litigation constituted sufficient record activity to preclude dismissal, as they were not frivolous or in bad faith.
The court reversed the dismissal, holding that the interrogatories were not frivolous or clearly useless and constituted sufficient record activity to preclude dismissal. The trial court erred in finding the interrogatories were in bad faith and duplicative, as supplemental interrogatories requesting updated answers are generally not regarded as bad faith discovery.
[1] Dismissal for lack of prosecution is appropriate only if discovery undertaken within the last year is in bad faith and without design to move the case forward toward a co…
[2] Supplemental interrogatories requesting updated answers concerning year-old interrogatories are generally not considered bad faith discovery and can preclude dismissal fo…
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Join FLexlaw to unlock all legal intelligence“dismissal is appropriate only if the discovery is in bad faith and without design to move the case forward toward a conclusion on the merits”
Establishes the controlling legal standard from Del Duca v. Anthony for dismissal based on lack of prosecution when discovery has occurred.
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Join FLexlaw to unlock all legal intelligenceBush filed a complaint in 1989 against Univest Real Estate Corporation seeking recovery of a real estate commission allegedly owed to his deceased fat…
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PER CURIAM.
Barry Bush appeals from a final order dismissing a breach of contract action for lack of prosecution. Fla.R.Civ.P. 1.420(e). We reverse.
Bush filed a complaint against Univest Real Estate Corporation (Univest) in 1989, seeking to recover a real estate commission allegedly due his deceased father as a result of the father’s efforts in procuring a buyer for commercial real property owned by Uni-vest. The parties exchanged a series of pleadings and motions which led to Bush’s third amended complaint and Univest’s answer and affirmative defenses to that complaint.
On April 22, 1992, Bush served a Reply to Univest’s affirmative defenses. Bush’s Reply was filed with the clerk of court on April 27, 1992. Nearly one year later, on April 12, 1993, Bush filed notice of service of Plaintiffs Pre-Trial Interrogatories to the defendant Univest. The three interrogatories propounded by Bush sought to determine whether a witness was still affiliated with Univest, whether all potentially liable defendants were named in the lawsuit, and to determine if any of Univest’s prior discovery responses had changed.
Univest responded on April 22, 1993, with a motion to dismiss for lack of prosecution. At hearing, the court granted Univest’s motion and dismissed the action finding that the appellant’s interrogatories, filed two weeks before the one year without record activity limit, were in bad faith, duplicative, and were not designed to move the case toward a resolution on the merits. The court denied Bush a rehearing and this appeal followed.
The Florida Supreme Court has provided the test for trial courts to apply when considering dismissal for failure to prosecute when some discovery has occurred during the last year: dismissal is appropriate only if the discovery is in bad faith and without design to move the case forward toward a conclusion on the merits. Del Duca v. Anthony, 587 So. 2d 1306, 1309 (Fla.1991).
We find that the interrogatories in this case are not “frivolous or clearly useless” and are sufficient record activity to preclude dismissal. Id.; Anthony v. Schmitt, 557 So. 2d 656, 660 (Fla. 2d DCA 1990), (It is common for litigants to request updated answers concerning year-old interrogatories, and as a general rule these supplemental interrogatories are not regarded as bad faith discovery.) decision approved by Del Duca v. Anthony, 587 So. 2d 1306 (Fla.1991).
Accordingly, we reverse the order of dismissal for lack of prosecution.
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Burk v. Value Rent-A-Car, 697 So. 2d 986 (Fla. 4th DCA 1997)…s and filed a notice that she was ready for trial. This activity is legally sufficient under the terms of Florida Rule of Civil Procedure 1.420(e) because it is calculated to advance Appellant’s cause to trial. See Bush v. Univest Real Estate Corp., 636 So. 2d 565 (Fla. 3d DCA 1994); Peterzell v. Urbach, 497 So. 2d 921 (Fla. 5th DCA 1986). With legally sufficient activity appearing on the face of the record, there is no need to examine whether Appellant established good cause, as mere inactivity for a period…
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Allen v. Orlando Reg'l Med. Ctr., 709 So. 2d 168 (Fla. 5th DCA 1998)…is improper. Del Duca v. Anthony, 587 So. 2d 1306, 1308-9 (Fla.1991), approving Anthony v. Schmitt, 557 So. 2d 656, 659 (Fla. 2d DCA 1990); American Casualty Co. v. Hess, 654 So. 2d 1011, 1013 (Fla. 1st DCA 1995); Bush v. Univest Real Estate Corp., 636 So. 2d 565 (Fla. 3d DCA 1994); Cristancho v. Village Homes in Bonaventure Homeowners Ass’n, 580 So. 2d 658 (Fla. 4th DCA 1991). The lower court apparently found it significant that almost a year had passed since the time the appellees had obtained these docum…
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Balbin v. Wayne, 730 So. 2d 845 (Fla. 3d DCA 1999)…. Epoch Management, Inc., 702 So. 2d 1309, 1310 (Fla. 5th DCA 1997); Cravens v. Kulubis, 694 So. 2d 780, 781 (Fla. 2d DCA 1997); American Cas. Co. of Reading, Pa. v. Hess, 654 So. 2d 1011, 1014 (Fla. 1st DCA 1995); Bush v. Univest Real Estate Corp., 636 So. 2d 565, 566 (Fla. 3d DCA 1994); Liuzzo v. Crapo, 504 So. 2d 480, 481 (Fla. 1st DCA 1987). Reversed.…
Authorities Cited
- del Duca v. Anthony, 587 So. 2d 1306 (Fla. 1991)
- Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990)