LARRY GROSSMAN, APPELLANT,
v.
GEORGE SEGAL AND JOEL DENNIS, APPELLEES
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Larry Grossman appealed the trial court's denial of his motion to dismiss a complaint for lack of prosecution filed by George Segal and Joel Dennis. The appellate court affirmed the denial, holding that the plaintiffs demonstrated sufficient good cause to excuse their failure to prosecute the case within one year, and that the trial judge properly exercised discretion to avoid an unfair result.
The trial court properly denied the motion to dismiss because the plaintiffs demonstrated good cause excusing their failure to prosecute within the one-year period. The trial judge properly exercised his discretion to deny the motion to avoid an unfair result that would defeat the cause of justice.
[1] A party seeking to avoid dismissal for lack of prosecution must demonstrate either active prosecution within the preceding year or good cause for the failure to prosecute…
[2] A trial court may exercise its discretion to deny a motion to dismiss for lack of prosecution when doing so would avoid an unfair result and serve the cause of justice.
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Join FLexlaw to unlock all legal intelligence“When a motion to dismiss is made, a party is required to show either active prosecution within the preceding year or good cause for his failure to prosecute to avoid dismissal of his complaint.”
Establishes the legal standard for defending against a motion to dismiss for lack of prosecution
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Join FLexlaw to unlock all legal intelligenceThe plaintiffs filed their complaint on June 30, 1967. Due to various delays, substitutions of attorneys, and protracted discovery proceedings, the ca…
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Defendant-appellant, Larry Grossman, brings this interlocutory appeal to review the lower court’s order denying his motion to dismiss plaintiff-appellees’, George Segal and Joel Dennis, complaint for lack of prosecution.
The complaint in this cause was filed by plaintiffs on June 30, 1967 and due to various delays, numerous substitution of attorneys and protracted discovery proceedings the case progressed very slowly. On August 21, 1972 appellant filed a motion to dismiss the complaint, pursuant to RCP 1.420(e), 30 F.S.A., upon the grounds that it affirmatively appeared from the file that no action had been taken by plaintiffs to prosecute the case for a period of one year prior to the motion. Following arguments by counsel, the trial judge denied the *747motion stating that this particular factual situation did not call for the enforcement of RCP 1.420(e).
When a motion to dismiss is made, a party is required to show either active prosecution within the preceding year or good cause for his failure to prosecute to avoid dismissal of his complaint. Chrysler Leasing Corp. v. Passacantilli, Fla. 1972, 259 So.2d 1; Sroczyk v. Fritz, Fla.1969, 220 So.2d 908; Fleming v. Florida Power Corp., Fla.App.1971, 254 So.2d 546; Adams Engineering Co. v. Construction Products Corp., Fla.App.1962, 141 So.2d 300, opinion quashed on other grounds, Fla., 156 So.2d .497, on remand, Fla.App., 158 So.2d 559; Schumaker v. Orange State Oil Co., Fla.App.1962, 141 So.2d 628. In the case sub judice defendant had engaged in delaying tactics and was not free from criticism. The trial judge properly ex'ercised his discretion and denied the motion to avoid “an unfair result” that would “defeat the cause of justice”. We uphold the denial of defendant’s motion based upon the good cause exhibited by plaintiffs which excused their failure to prosecute.
All other issues raised by defendant are not sufficient to warrant a reversal. However, we must mention and dispose of the argument raised by defendant that the illness of plaintiffs’ counsel was responsible for the denial of the motion to dismiss. The one year period established in RCP 1.420(e) is liberal enough to contemplate a misfortune such as illness because the litigants have sufficient time to readjust themselves to this type of calamity, Davant v. Coachman Properties, Inc., Fla. App.1960, 118 So.2d 844, and a temporary illness will not work an extreme hardship that would satisfy the good cause requirement of RCP 1.420(e). In the instant case plaintiffs’ attorney was only temporarily ill and the affliction did not begin until the day before the one year period expired; therefore, this was not the determinative factor used by the court below in reaching its decision and it will not require a reversal on appeal.
Consequently, the order entered by the trial court is hereby affirmed.
Affirmed.
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Barnes v. Dr. Patricia Ross & the Ladies Ctr. of S. Fla., Inc., 386 So. 2d 812 (Fla. 3d DCA 1980)…uglas, the extent of the medical problem of the plaintiff was undetermined and the length of the hospitalization unstated by the plaintiff. It has been said that a temporary illness will not satisfy the good cause requirement. See Grossman v. Segal, 270 So. 2d 746 (Fla. 3d DCA 1972). The length of the temporary illness in Grossman is not stated. • However, it is clear from the opinion that the unnamed affliction did not occur until one day before the expiration of the one-year period. .The.rationale for this…
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Carter v. DeCARION, 400 So. 2d 521 (Fla. 3d DCA 1981)…preceding year or good cause for his failure to prosecute to avert dismissal of the cause. Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla.1972); Ace Delivery Service, Inc. v. Pickett, 274 So. 2d 15 (Fla. 2d DCA 1973); Grossman v. Segal, 270 So. 2d 746 (Fla. 3d DCA 1972), cert. denied, 274 So. 2d 237 (Fla.1973). It is apparent that appellant’s Notice of Taking Deposition, filed on the same day as appellees’ Motion to Dismiss, was not filed within the preceding year. The trial court therefore prope…
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Cape Royal Realty, Inc. v. Kroll, 804 So. 2d 605 (Fla. 5th DCA 2002)…ad he not died. A similar position was rejected by the court in Lenion v. Calohan, 652 So. 2d 461, 462 (Fla. 1st DCA 1995), which held “[cjounsel’s falling ill on the 364th day [*609] does not constitute good cause.” Lenion cited Grossman v. Segal, 270 So. 2d 746, 747 (Fla. 3d DCA 1972), which held: The one year period established in RCP 1.420(e) is liberal enough to contemplate a misfortune such as illness because the litigants have sufficient time to readjust themselves to this type of calamity (citation…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla. 1972)
- Davant v. Coachman Props., Inc., 118 So. 2d 844 (Fla. 2d DCA 1960)
- Sroczyk v. Fritz, 220 So. 2d 908 (Fla. 1969)
- Fleming v. Fla. Power Corp., 254 So. 2d 546 (Fla. 2d DCA 1971)
- Adams Eng'g Co., Inc. v. Constr. Prods. Corp., 141 So. 2d 300 (Fla. 3d DCA 1962)
- Adams Eng'g Co., Inc. v. Constr. Prods. Corp., 158 So. 2d 559 (Fla. 3d DCA 1963)
- Schumaker v. Orange State OIL Co., 141 So. 2d 628 (Fla. 2d DCA 1962)