WARREN F.X. SMITH, ETC., ET AL., APPELLANTS,
v.
BROWARD COUNTY, ETC., APPELLEE
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The court held that a letter sent to the trial judge, even if not filed, constituted a sufficient showing of good cause to avoid dismissal for failure to prosecute under Rule 1.420(e).
Plaintiffs' case was continued multiple times. Following the latest continuance, plaintiffs sent a letter to the judge reminding him of a prior reques…
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PER CURIAM.
Plaintiffs Mr. and Mrs. Smith take this appeal from the dismissal of their action for failure to prosecute under Florida Rule of Civil Procedure 1.420(e). We hold that they showed good cause to avoid dismissal and thus reverse.
This case has been set for trial and continued several times. Following the latest continuance, which was at the defense’s request, the Smiths sent a letter to the trial judge reminding him of their previous request to set the trial for a date certain to accommodate out-of-state witnesses. That letter was apparently not placed in the court file, and the record is silent on whether the judge received it,1 but appellee did not dispute the letter’s authenticity and concedes having received a copy.
Rule 1.420(e) provides in pertinent part that when there has been no record activity in a case for at least one year, the case shall be dismissed unless a party shows good cause in writing why it should not be dismissed. The Smiths’ letter would have constituted sufficient record activity to avoid dismissal if it had been placed in the court file. Koscot Interplanetary, Inc. v. Zurich Ins. Co., 580 So. 2d 318 (Fla. 3d DCA 1991). We therefore hold that the letter constituted a sufficient showing of good cause even though it was not record activity.
We note that the better procedure in this case would have been for the Smiths’ counsel to have filed a motion to reset the cause for trial. See Fishe & Kleeman, Inc. v. Aquarius Condo. Ass’n, Inc., 524 So. 2d 1012 (Fla.1988). The fact that the letter was apparently not placed in the court file illustrates the danger in relying on a letter to the trial judge to move a case forward.
REVERSED.
GLICKSTEIN, WARNER and KLEIN, JJ., concur. . A successor judge heard the motion to dismiss for lack of prosecution. The judge did not have a copy of the file at the hearing, and much of the file was subsequently lost due to no fault of the parties.
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Albelo v. S. Bell k/n/a Bell S. Telecomms., Inc., 682 So. 2d 1126 (Fla. 4th DCA 1996)…ibility of an issue of fact, or if the record raises even the slightest doubt as to the existence of an issue of fact, then that doubt must be resolved against the moving party and the remedy of summary judgment is not available. Tretten v. Irrgang, 654 So. 2d 1297 (Fla. 4th DCA 1995). Furthermore, even where the facts are uncontroverted, the remedy of summary judgment is not available if different inferences can be reasonably drawn from the uncontroverted facts. Pan Am. Distrib. Co. v. Sav-A-Stop, Inc., 124…
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Moossun v. Orlando Reg'l Health Care, 826 So. 2d 945 (Fla. 2002)…2 So. 2d 223, 223 (Fla. 3d DCA 1996). Finally, district courts also commonly hold that the act of simply sending a letter to the trial judge is “sufficient record activity to avoid dismissal if ... placed in the court file.” Smith v. Broward County, 654 So. 2d 1297, 1298 (Fla. 4th DCA 1995); see also Cole v. Dep’t of Corrections, 726 So. 2d 854, 855-56 (Fla. 4th DCA 1999). I find these cases significant to the resolution of the issues before the Court in the instant cause, and I am persuaded that ordering a st…
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Lemuel L. Cole v. Dep't OF Corr., 726 So. 2d 854 (Fla. 4th DCA 1999)…eflected in the court file that was designed to move the case forward toward a conclusion on the merits or to hasten the suit to judgment.” Barnett Bank of East Polk County v. Fleming, 508 So. 2d 718, 720 (Fla.1987). In F.X. Smith v. Broward County, 654 So. 2d 1297, 1298 (Fla. 4th DCA 1995), we held that a letter to the judge requesting a trial date is sufficient record activity to avoid dismissal. [*856] Similarly, in Wilcox v. Morse, 693 So. 2d 91, 92 (Fla. 2d DCA 1997), the second district held that a notic…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fishe & Kleeman, Inc. v. Aquarius Condo. Ass'n, Inc., 524 So. 2d 1012 (Fla. 1988)
- Koscot Interplanetary, Inc. v. Zurich Ins. Co. & Roy Reid & Assocs., Inc., 580 So. 2d 318 (Fla. 3d DCA 1991)