NAOMI R. CHASE, INDIVIDUALLY, ETC., APPELLANT,
v.
WILLIAM W. LAVENDER, JR., ET AL., APPELLEES

Fla. 5th DCA | 2002-02-22
No. 5D01-931
SHARP, W. and GRIFFIN, JJ., concur.
810 So. 2d 1004 Florida District Court of Appeal, Fifth District (2002) Positive Treatment
Cited by 2 cases

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Synopsis

Naomi Chase appeals the dismissal of her action seeking revocation of trust amendments for failure to prosecute under Florida Rule 1.420(e). The court affirmed the dismissal, rejecting her argument that good cause existed to excuse a one-year period of inactivity based on the pendency of a related appeal in a companion case.


Holding

The trial court did not abuse its discretion in dismissing the action. The pendency of an appeal in a related case is not justification for delaying prosecution of separate claims against different defendants, particularly where the appellant made no attempt to consolidate the cases, seek abatement, or prosecute the action against defendants other than the attorney-defendant in the related appeal.


Headnotes

[1] A trial court's dismissal of an action for failure to prosecute under Rule 1.420(e), Florida Rules of Civil Procedure, is reviewed for abuse of discretion.

[2] The pendency of an appeal in a separate, though related, case does not automatically justify a delay in prosecuting another action against different defendants.

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Key Quotes

“The pendency of that appeal is not a justification to delay proceedings against the other defendants.”

Establishes the core principle that a pending appeal in a related case cannot excuse inactivity in a separate action against different defendants

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Facts & Procedural History

Naomi Chase filed an action in April 1998 seeking revocation of amendments to her deceased mother's trust. The last defendant response was filed in Ju…

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Opinion of the Court
PETERSON, J.

PETERSON, J.

Naomi Chase appeals the dismissal of her action that sought revocation of some amendments to her deceased mother’s trust for failure to prosecute. She contends that the good cause exhibited before the trial court should have excused the absence of record activity for a period of one year and that the court erred by dismissing her action pursuant to Rule 1.420(e), Florida Rules of Civil Procedure.

In addition to filing the instant action, Naomi Chase also filed another civil action against some of the beneficiaries of that trust and the attorney who drafted it. The other action was the subject of appeal in Chase v. Bowen, 771 So. 2d 1181 (Fla. 5th DCA 2000) (hereinafter referred to as Chase I). The chronology of events is as follows:

April 30,1998 — The instant action is filed less than one year after initiating the action in Chase I.

July 13,1998 — Last answer or motion filed by a defendant.

October 11,1999 — The trial court sua sponte served a Notice of Failure to Prosecute and Notice of Hearing.

October 19,1999 — Naomi Chase filed a “Showing of good cause” and the trial court cancels the hearing.

December 5, 2000 — The trial court sua sponte served the second notice of failure to prosecute. Naomi Chase again responded on January 2,2001 and two defendants contested the response.

January 8, 2001 — Healing held on the Notice of Failure to Prosecute and the responses. No transcript of hearing appears in the record.

March 2, 2001 •— The trial court dismisses action pursuant to Rule 1.420(e).

Naomi Chase’s January 2, 2001 response to the December 5, 2000 Notice of Failure to Prosecute primarily alleged that the instant action was a “companion case” to Chase I, that the two cases rely upon a near identical set of facts and the Chase I mandate on appeal was not issued until December 4, 2000. Additionally, she asserts that the same judge presides over the two actions, Chase I was litigated vigorously, the lead defendants in both cases are the same and judicial economy and efficiency dictate that Chase I be pursued to a conclusion before virtually identical factual and legal issues were considered in the instant action.

Chase is correct that the common thread between the two cases is the alleged undue influence of two defendants, William and Sharon Lavender. But that was not the issue in the Chase I appeal. Chase I involved Naomi’s action for damages against an attorney who drafted her mother’s trust amendments. No other party to either the instant action or Chase I was a party to the appeal. The pendency of that appeal is not a justification to delay proceedings against the other defendants.

Our review of the index provided in both cases indicates that all record activity at the trial level in both cases ceased after March 31, 1999, when the notice of appeal was filed in Chase I after the sole attorney-defendant involved in that appeal was granted a summary judgment.

The standard of review of the trial court’s dismissal for lack of “good cause” under Rule 1.420(e) is abuse of discretion. E.g., Palokonis v. EGR Enterprises, Inc., 652 So. 2d 482 (Fla. 5th DCA 1995). It is apparent from the record in this appeal that no record activity at the trial level took place in either case after March 31, 1999, that no attempt was made to consolidate the two “companion cases” or abate the instant one, that nothing precluded Naomi Chase from prosecuting either case against all other defendants while the appeal was pending against the prevailing attorney in Chase I and that the attorney was never a party to the instant action. That record lends no support to Naomi’s allegation that the trial court abused its discretion by dismissing her action.

AFFIRMED.

SHARP, W. and GRIFFIN, JJ., concur.


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Citator

Cited By

  • Patton v. Kera Tech., Inc., 946 So. 2d 983 (Fla. 2006)
    …on appeal must demonstrate that the trial court’s determination of good cause was an abuse of discretion. See, e.g., Hall, 784 So. 2d at 1090 n. 4; Andres v. City of Jacksonville, [*987] 911 So. 2d 1286, 1286 (Fla. 1st DCA 2005); Chase v. Lavender, 810 So. 2d 1004, 1005 (Fla. 5th DCA 2002) (“The standard of review of the trial court’s dismissal for lack of ‘good cause’ under Rule 1.420(e) is abuse of discretion.”). Therefore, the appellate issue in Patton was whether the trial court abused its discretion when…

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