DEVAUGHN C. SMITH, APPELLANT,
v.
BUFFALO'S ORIGINAL WINGS & RINGS II OF TALLAHASSEE, INC., APPELLEE
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Smith appeals the dismissal of her civil complaint for failure to prosecute under Florida Rule 1.420(e). Although the plaintiff claimed her epilepsy and fibromyalgia constituted good cause to excuse the year-long inactivity, the court affirmed dismissal because she failed to provide evidentiary support for her medical claims.
While illness or physical disability can constitute good cause under Rule 1.420(e), the plaintiff must provide evidence of record to support such claims, not merely unsworn allegations or argument. Smith's unsupported allegations of medical conditions are insufficient to avoid dismissal.
[1] A plaintiff's illness or physical disability can constitute good cause to avoid dismissal for failure to prosecute under rule 1.420(e), Florida Rules of Civil Procedure.
[2] A showing of good cause to avoid dismissal for failure to prosecute must be supported by evidence of record, not merely argument or unsworn allegations.
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“an illness or physical disability of a plaintiff, or the plaintiffs attorney, can constitute good cause under rule 1.420(e). See Lenion v. Calohan, 652 So.2d 461 (Fla. 1st DCA 1995). Nevertheless, a showing of good cause by evidence of record is required, not simply argument or unsworn allegations.”
Establishes that while health problems may excuse delay, they must be supported by actual evidence, not mere allegations.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSmith's complaint had no activity of any type for more than one year prior to the defendant's motion to dismiss. Smith filed an unverified objection c…
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PER CURIAM.
DeVaughn C. Smith appeals a final order dismissing her complaint for failure to prosecute pursuant to rule 1.420(e), Florida Rules of Civil Procedure. Although Smith concedes that there had been no activity of any type in the action for more than one year prior to the filing of the motion to dismiss, she contends that her health problems constitute good cause to avoid dismissal. Certainly, an illness or physical disability of a plaintiff, or the plaintiffs attorney, can constitute good cause under rule 1.420(e). See Lenion v. Calohan, 652 So. 2d 461 (Fla. 1st DCA 1995).
Nevertheless, a showing of good cause by evidence of record is required, not simply argument or unsworn allegations. See Levine v. Kaplan, 687 So. 2d 863, 865 (Fla. 5th DCA), rev. denied, 697 So. 2d 511 (Fla.1997)(“Good cause is excusable conduct other than negligence or inattention to deadlines. It has been defined by our courts as proof of some compelling reason why the suit was not prosecuted.”)(emphasis added); Cox v. Wiod, Inc., 764 So. 2d 671 (Fla. 4th DCA 2000)(“For a party to establish good cause, it must show a compelling reason to avoid dismissal where there has been no record activity”)(emphasis added), citing Norflor Constr. Corp. v. City of Gainesville, 512 So. 2d 266, 268 (Fla. 1st DCA 1987), rev. denied, 520 So. 2d 585 (Fla.1988).
Here, appellant filed only an unverified pleading entitled an “Objection to Defendant’s Motion to Dismiss,” in which she alleged that she suffers from epilepsy and “acute fi-bromyasia [sic]” and, as a result, “has not been able to actively participate in the discovery process.” Without further explanation, the objection asserts that “[g]iv-en the Plaintiffs medical condition, there has been no opportunity to prosecute the case.... ” The appellant’s objection is not supported by affidavits, supporting medical records or other documentation, and the record contains no transcript of the hearing on the motion to dismiss and appellant’s objection thereto. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979).
The unsupported allegations in the objection, by themselves, are not sufficient to avoid dismissal under rule 1.420(e).
See Levine, Cox.
Accordingly, an abuse of the trial court’s discretion has not been shown, see Edgecumbe v. American Gen. Corp., 613 So. 2d 123, 124-125 (Fla. 1st DCA 1993), and we affirm.
AFFIRMED.
JOANOS, LAWRENCE AND VAN NORTWICK, JJ., CONCUR.
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Cape Royal Realty, Inc. v. Kroll, 804 So. 2d 605 (Fla. 5th DCA 2002)…eath merely a coincidence? Certainly, an illness or death can constitute good cause under rule 1.420(e). Nevertheless, a showing of good cause by evidence of record is required. See Smith v. Buffalo’s Original Wings & Rings II of Tallahassee, Inc., 765 So. 2d 983 (Fla. 1st DCA 2000). The issue before the court at the initial hearing on the motion to dismiss was why the action had not been diligently prosecuted. The response that the lawyer had recently died was not an acceptable answer unless it was also sho…
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Wynelle L. Sebree v. Schantz, 963 So. 2d 842 (Fla. 3d DCA 2007)…the plaintiff on this step, it necessarily follows that unsworn allegations or argument of counsel, standing alone, will not satisfy the plaintiffs burden on a second-step analysis. Smith v. Buffalo’s Original Wings & Rings II of Tallahassee, Inc., 765 So. 2d 983, 984 (Fla. 1st DCA 2000)(“[E]vidence of record is required, not simply argument or unsworn allegations.”). See also Lazcar Int’l, Inc. v. Caraballo, 957 So. 2d 1191, 1192 (Fla. 3d DCA 2007)(“Unsworn argument of counsel is insufficient to satisfy the…
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Dalton v. The Lighthouse FOR Cent., 949 So. 2d 1118 (Fla. 5th DCA 2007)…[*1119] PER CURIAM. AFFIRMED. See Smith v. Buffalo’s Original Wings & Rings II of Tallahassee, Inc., 765 So. 2d 983 (Fla. 1st DCA 2000).…
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Norflor Constr. Corp. v. City OF Gainesville & CH2M Hill Se., Inc., 512 So. 2d 266 (Fla. 1st DCA 1987)
- Levine v. Kaplan, 687 So. 2d 863 (Fla. 5th DCA 1997)
- Edgecumbe v. Am. Gen. Corp., 613 So. 2d 123 (Fla. 1st DCA 1993)
- Lenion v. Allyson Claire Calohan, 652 So. 2d 461 (Fla. 1st DCA 1995)
- COX v. Wiod, Inc., 764 So. 2d 671 (Fla. 4th DCA 2000)