TRISHA L. NETZLEY, APPELLANT,
v.
ELLA FAY MAGINNESS; ESQUIRE LIMOUSINE SERVICE, INC., A DISSOLVED FLORIDA CORPORATION; FRANK I. SHADE, JR., INDIVIDUALLY; AND FRANK I. SHADE, SR., INDIVIDUALLY, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Trisha Netzley appeals dismissal of her personal injury lawsuit for failure to prosecute. The court holds that her service of interrogatories within one year of the dismissal motion constituted sufficient record activity in good faith to move the case forward, requiring reversal of the dismissal.
The court reversed the dismissal order, holding that Netzley's interrogatories were served in good faith and designed to move the case forward. Even if primarily filed to avoid dismissal, interrogatories seeking critical information about witnesses and documents that had never been provided constitute sufficient record activity under Del Duca v. Anthony.
[1] A trial court may not dismiss an action for failure to prosecute if record activity existed within the relevant one-year window preceding the motion to dismiss.
[2] Discovery served in good faith and designed to move a case forward toward a conclusion on the merits constitutes sufficient record activity to avoid dismissal for failure…
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“the trial court was free to dismiss this action only if the discovery was filed in bad faith and without any design to move the case forward toward a conclusion on the merits”
States the legal standard for dismissal for failure to prosecute under Del Duca
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNetzley was a passenger in a limousine struck by a vehicle driven by Ella Fay Maginness on June 3, 1993. She filed suit on June 2, 1997, against Magin…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Record Activity cases and more on FLexlaw
ALTENBERND, Judge.
Trisha L. Netzley appeals an order dismissing her complaint for failure to prosecute. Because she served discovery within the relevant one-year window, this is a case in which record activity existed at the time the trial court dismissed the action. Under the guidelines announced in Del Duca v. Anthony, 587 So. 2d 1306 (Fla. 1991), we conclude that Ms. Netzley’s action should not have been dismissed.
Ms. Netzley was a passenger in a limousine that was allegedly struck by another vehicle driven by Ella Fay Maginness on June 3, 1993. On June 2, 1997, Ms. Netz-ley filed this lawsuit against the limousine service, Esquire Limousine Service (Esquire); its owners, Frank I. Shade, Sr., and Frank I. Shade, Jr.; and the driver of the other car, Ms. Maginness. Various documents, including answers, were filed with the court over the next eighteen months. Thereafter, the lawsuit languished. No activity occurred in this case except for Ms. Maginness’s deposition, which was taken on October 20, 1999. See Metro. Dade County v. Hall, 784 So. 2d 1087 (Fla.2001) (holding that deposition taken in good faith and to move case forward is sufficient record activity to avoid dismissal for failure to prosecute).
A year after Ms. Maginness’s deposition, on October 19, 2000, Ms. Netzley served her first set of interrogatories on the defendants and her notice of service. On November 16, 2000, all of the defendants except for Ms. Maginness responded to the interrogatories by filing a motion to dismiss for failure to prosecute. Thus, the issue in this case is whether Ms. Netzley’s interrogatories, filed in the year preceding November 16, 2000, were served in good faith and designed to move the case forward. See Buckley v. Commonwealth Mortgage Assurance Co., 725 So. 2d 1146, 1148 (Fla. 2d DCA 1998) (finding that when motion to dismiss for failure to prosecute is filed, court should determine whether any record activity has occurred during one-year period preceding the filing of motion).
Ms. Netzley’s interrogatories asked the defendants to identify any witnesses they planned to call at trial. They also contained standard expert witness interrogatories. Finally, the interrogatories asked the defendants to identify all documents that they intended to introduce into evidence. This case had never been set for trial, and the defendants had never provided this critical information to Ms. Netzley at any time preceding these interrogatories.
Applying the test announced in Del Duca, 587 So. 2d at 1308, the trial court was free to dismiss this action only if the discovery was filed in bad faith and without any design to move the case forward toward a conclusion on the merits. Even if we assume that these interrogatories were filed primarily to avoid dismissal of a dormant case, they were still designed to move the case forward. These interrogatories cannot be distinguished from the similar interrogatories in Del Duca. Accordingly, we must reverse the order of dismissal.
Reversed and remanded.
GREEN and SILBERMAN, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Manuel G. Jain, M.D. v. Green Clinic, Inc., 830 So. 2d 836 (Fla. 2d DCA 2002)…rthermore, if the deposition had been taken without placing notice in the file, that act would have constituted good faith activity designed to advance the pending matter to resolution and also would have avoided dismissal. See Netzley v. Maginness, 806 So. 2d 596 (Fla. 2d DCA 2002) (citing Hall) 784 So. 2d at 1090). Only because Dr. Jain’s lawyer courteously contacted opposing counsel did the time continue to run. Here, to avoid the possibility that an arbitrarily chosen deposition date would later be determ…
-
Jeffrey Lang, M.D. v. Mason, 911 So. 2d 167 (Fla. 2d DCA 2005)…n and offers of judgment made in accordance with the Florida Rules of Civil Procedure are good cause to avoid dismissal if the depositions and offers are taken and made in good faith to move the case forward to a conclusion.”); Netzley v. Maginness, 806 So. 2d 596, 597 (Fla. 2d DCA 2002) (“Even if we assume that these interrogatories were filed primarily to [*170] avoid dismissal of a dormant case, they were still designed to move the case forward.”). We have examined Dr. Lang’s discovery requests in this ca…
Authorities Cited
- del Duca v. Anthony, 587 So. 2d 1306 (Fla. 1991)
- Metro. Dade Cnty. v. Hall, 784 So. 2d 1087 (Fla. 2001)
- In re Est. OF Ronald Lett. Jeannette Lett Heitman v. Caceres, 725 So. 2d 1146 (Fla. 3d DCA 1998)
- Buckley v. Commonwealth Mortg. Assurance Co. Serv. Co., 725 So. 2d 1146 (Fla. 2d DCA 1998)