R. KEITH MILLIGAN AND DIAN H. MILLIGAN, APPELLANTS,
v.
WILLIAM OSBORNE, ETC., ET AL., APPELLEES
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The court held that notices of taking depositions constitute sufficient record activity to avoid dismissal for lack of prosecution.
[1] Notices of taking depositions constitute sufficient record activity to prevent dismissal for lack of prosecution.
[2] Record activity by either party can serve as a basis for avoiding dismissal under Rule 1.420(e) if the efforts are not frivolous or useless.
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Join FLexlaw to unlock all legal intelligenceThe Milligans' action was dismissed for lack of prosecution. The Milligans argued that the defendant's filing of a notice and amended notice of taking…
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COBB, Judge.
The issue presented in this pro se appeal is whether the trial court erred in dismissing Keith and Dian Milligan’s action against William Osborne for lack of prosecution. Fla. R.Civ.P. 1.420(e). The record indicates that on March 8, 1995 and March 30, 1995, a notice and amended notice of taking deposition duces tecum were filed respectively by Osborne. The Milligans argued that the above represented “record activity.”
We agree with the Milligans that the notices of taking deposition constitute sufficient record activity.1 Simply as clarification, we note that case law in Florida points to the fact that either party’s record activity can serve as a basis for not dismissing under Rule 1.420(e) if the efforts are not frivolous or useless. Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990), affirmed by, Del Duca v. Anthony, 587 So. 2d 1306 (Fla.1991); Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla.1972).
Taking note of the fact that an attorney has a duty not to abuse legal procedure, Rule 4-3.1, Rules Regulating the Florida Bar, we reject any suggestion by Osborne that his two efforts to depose the appellant, Dian Milligan, were “clearly useless and did not move the ease toward conclusion.” Accordingly, the final order dismissing the Milli-gans’ action for lack of prosecution is reversed and the cause remanded for further proceedings.
REVERSED.
W. SHARP and THOMPSON, JJ., concur. . See Q.I.P. Corp. v. Berger, 547 So. 2d 1286 (Fla. 4th DCA 1989), review dismissed, 554 So. 2d 1167 (Fla.1989) (notice of taking deposition); Norflor Constr. Corp. v. City of Gainesville, 512 So. 2d 266 (Fla. 1st DCA 1987), review denied, 520 So. 2d 585 (Fla.1988)(the last undisputed record activity was the filing of a notice of taking deposition); Orange Elec. Co. v. Hughes Supply, Inc., 467 So. 2d 479 (Fla. 5th DCA 1985) (notice of taking deposition even though deposition was not taken); City of Jacksonville v. Hinson, 202 So. 2d 806 (Fla. 1st DCA), cert. denied, 207 So. 2d 688 (Fla.1967) (notice of taking deposition).
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Citator
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Hall v. Metro. Dade Cnty., 760 So. 2d 1051 (Fla. 3d DCA 2000)…97); Utset v. Campos, 548 So. 2d 834, 837 (Fla. 3d DCA 1989); Silverman v. Equifax Services, Inc., 420 So. 2d 928, 929 (Fla. 3d DCA 1982). Other cases in accord include Cravens v. Kulubis, 694 So. 2d 780, 781 (Fla. 2d DCA 1997); Milligan v. Osborne, 682 So. 2d 706, 706 (Fla. 5th DCA 1996); Q.I.P. Corp. v. Berger, 547 So. 2d 1286, 1288 (Fla. 4th DCA 1989); and Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90, 94 (Fla. 1st DCA 1979), disapproved on other grounds, Del Duca v. Anthony, 587 So. 2d 1306, 1309 (Fla.…
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Nichols v. Lohr, 776 So. 2d 366 (Fla. 5th DCA 2001)…(Fla. 5th DCA), rev. denied, 697 So. 2d 511 (Fla.1997). Smith and Levine hold that the taking of a deposition does not constitute record activity. Yet, the filing of a notice to take a deposition does constitute record activity. Milligan v. Osborne, 682 So. 2d 706 (Fla. 5th DCA 1996). Unfortunately for the appellants, their notice of deposition was filed in the wrong case; the first case between the parties which had been dismissed. In addition, the appellants did not assert this argument below and, in fact…
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Russ Kodner v. Fla. Power & Light Co., 693 So. 2d 1122 (Fla. 4th DCA 1997)…t for production filed by FP & L less than a year before the court filed its motion, notice and hearing of dismissal, constitutes sufficient [*1123] record activity, so that dismissal pursuant to the above rule was in error. See Milligan v. Osborne, 682 So. 2d 706 (Fla. 5th DCA 1996)(recognizing that notices of taking deposition constitute sufficient record activity and that case law in Florida points to the fact that either party’s record activity can serve as a basis for not dismissing under Rule 1.420(e) i…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- del Duca v. Anthony, 587 So. 2d 1306 (Fla. 1991)
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Norflor Constr. Corp. v. City OF Gainesville & CH2M Hill Se., Inc., 512 So. 2d 266 (Fla. 1st DCA 1987)
- Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990)
- City OF Jacksonville v. Hinson, 202 So. 2d 806 (Fla. 1st DCA 1967)
- Q.I.P. Corp. v. Berger, 547 So. 2d 1286 (Fla. 4th DCA 1989)
- Orange Elec. Co. v. Hughes Supply, Inc., 467 So. 2d 479 (Fla. 5th DCA 1985)
- Blynn v. Ralbag, 207 So. 2d 688 (Fla. 1967)
- City of Miami v. Aeroland Oil Co., 207 So. 2d 688 (Fla. 1967)