JOHN W. PALOKONIS AND MARJORIE A. PALOKONIS, APPELLANT,
v.
EGR ENTERPRISES, INC., APPELLEE

Fla. 5th DCA | 1995-03-24
No. 93-2407
W. SHARP and GRIFFIN, JJ., concur.
652 So. 2d 482 Florida District Court of Appeal, Fifth District (1995) Caution
Cited by 14 cases

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Holding

The trial court abused its discretion by finding good cause for a year of inactivity, and the cause of action should be dismissed.


Headnotes

[1] A trial court abuses its discretion by finding good cause for a lack of record activity for over a year when the plaintiff's justification for delay was resolved prior to…

[2] Participation in an appeal of a related case does not constitute good cause to avoid dismissal for failure to prosecute.

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Facts & Procedural History

After a case was transferred, the plaintiff took no action for over a year, citing delay due to pending appeals in similar cases. The trial court issu…

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Opinion of the Court
HARRIS, Chief Judge.

HARRIS, Chief Judge.

While we concede that appellants’ pro se brief is not a model of clarity, it nevertheless raises one issue that has merit: whether the trial court erred in failing to dismiss the cause for failure to prosecute. Unfortunately, appellee’s Anders-type answer brief was of little assistance:

It is impossible for Appellee’s [sic] to respond to the arguments as proposed by the Appellant in any manner which would make any sense whatsoever to the court. Therefore, Appellee requests the court to review the Appellant’s Amended Initial Brief with the view that if there are any errors, whatsoever, which warrants [sic] reversal, to do so. However, Appellee, represents and believes that the record is free from any error and the case was decided on the facts for the Appellee and against the Appellants (Answer Brief, pp. ii-iii).

After the cause was transferred from the county court to the circuit court, appellee (plaintiff below) took no further action for over a year, and the trial judge entered a “show cause” order as to why the action should not be dismissed.

Appellee responded that its excuse for not prosecuting its case against these defendants was that it had filed similar cases against other residents in the mobile home park and one of the other cases was on appeal to this court. In order to conserve “judicial resources,” appellee decided unilaterally to delay prosecution of the remaining cases until the appeal was decided. Even then, however, it appears that the appeal in the other case was dismissed several weeks before the court in this case issued its show cause order.

At the hearing on the show cause order, appellants cited cases supporting their position that appellee had not shown good cause to justify further prosecution of this ease. The court delayed ruling on the show cause order until appellee could respond by memorandum. It did so. After reviewing the memorandum (as we also have done because of the inadequacy of the answer brief), the court reinstated the cause.

We reverse.

Whether a party has shown good cause to keep an action pending, despite lack of record activity for more than one year, is a question committed to the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion. Edgecumbe v. American General Corp., 613 So. 2d 123 (Fla. 1st DCA 1993). But a showing of good cause requires some contact with the opposing party and some form of excusable conduct or occurrence which arose other than through negligence or inattention to the pleading deadline. Freeman v. Toney, 608 So. 2d 863 (Fla. 4th DCA 1992).

In Perez v. Cohen, 362 So. 2d 985 (Fla. 3d DCA), cert. denied, 365 So. 2d 710 (Fla.1978), the court stated that participation in an appeal of a related case does not constitute good cause and cannot be used to avoid a dismissal for failure to prosecute. In Funke v. Lopez, 432 So. 2d 787 (Fla. 3d DCA 1983), participation in an arbitration proceeding in a case not directly related was not good cause.

Finally, in Smith v. DeLoach, 556 So. 2d 786 (Fla. 2d DCA), rev. denied, 564 So. 2d 1087 (Fla.1990), the court stated that, in order to show good cause, “a party must show that he is justifiably prevented from proceeding with the lawsuit because of another pending ac-tion_” Id. at 789.

The plaintiffs in De-Loach argued that they could not proceed with a legal malpractice action against the attorney who drafted their father’s will until the probate proceeding was concluded because only then would they be able to determine the amount of damages to seek. In holding that this reason was not “good cause,” the court noted that even if the delay for the resolution of the probate proceeding did constitute “good cause,” this did not explain why the plaintiffs did not file any paper within the month after that proceeding was concluded. Id. at 788-89.

The instant case is very much like DeLoach in that, even if the pending appeal in another case involving defendants with similar issues was justification for delay, there was no justification shown for not immediately proceeding after the appeal was resolved. Based on the case law cited and the facts of this case, the trial court abused its discretion in finding that appellee showed good cause for its lack of record activity during a one-year period and the final judgment is reversed with instructions that the cause of action be dismissed.

REVERSED.

W. SHARP and GRIFFIN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Campus Commc'ns, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5th DCA 2002)
    …that is not contained in the autopsy records that were released. The standard of review regarding issues of good cause requires us to determine whether the trial court abused its discretion in making its decision. See Palokonis v. EGR Enters. Inc., 652 So. 2d 482 (Fla. 5th DCA 1995); Williams v. Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986). Based on our thorough review of the record in the instant case and our analysis of this issue, we conclude that the trial court did not abuse its discretion in f…
  • Nat'l Enters., Inc. v. Foodtech Hialeah, Inc., 777 So. 2d 1191 (Fla. 3d DCA 2001)
    …o keep an action pending, despite lack of record activity for more than one year, is a question committed to the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion.” Palokonis v. EGR Enters. Inc., 652 So. 2d 482, 483 (Fla. 5th DCA 1995). See also Kearney v. Ross, 743 So. 2d 578 (Fla. 4th DCA 1999); Cole v. Dep’t. of Corrections, 726 So. 2d 854, 855 (Fla. 4th DCA 1999); Magers v. Walker’s Cay Air Terminal, Inc., 451 So. 2d 867 (Fla. 4th DCA 1983). The appel…
  • Seabury v. Cheminova, Inc., 868 So. 2d 625 (Fla. 2d DCA 2004)
    …arise from any of those situations. Here, the same plaintiffs’ attorneys — not the same plaintiffs — sued the same defendants but asserted different claims in different forums. This case bears some resemblance to Palokonis v. EGR Enterprises, Inc., 652 So. 2d 482 (Fla. 5th DCA 1995), where the plaintiff had filed similar actions against other residents in the same mobile home park, and one of the “related” cases was on appeal. Therefore, in an alleged attempt to “conserve ‘judicial resources,’ the appel-lee…

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