FLORIDA POWER & LIGHT COMPANY, APPELLANT,
v.
RUTH MIRMELLI GILMAN, APPELLEE
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Florida appellate court reversed dismissal denial, holding that a change of attorneys and office misplacement of files do not constitute good cause to excuse one year of inactivity in prosecution under Florida Rule of Civil Procedure 1.420(e).
A change of attorneys and inadvertent office error in misplacing a file do not constitute good cause to excuse failure to prosecute for one year under Florida Rule of Civil Procedure 1.420(e).
[1] A change of attorneys and inadvertent office error by counsel in misplacing a client file do not constitute good cause to excuse failure to prosecute under Florida Rule o…
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Join FLexlaw to unlock all legal intelligenceAppellee filed a personal injury complaint in October 1970; appellant moved to dismiss for lack of prosecution in February 1973 after one year of no a…
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The appellee’s complaint asking damages for personal injury was filed in October, 1970. The appellant filed its motion to dismiss for lack of prosecution on February 23, 1973. There is no question but that the record reflects no activity for one year prior to February 23, 1973. The trial judge denied the defendant’s motion upon the basis that the plaintiff showed “good cause” in a written response to the motion to dismiss. Sec Rule 1.420(e), RCP, 30 F.S.A. This interlocutory appeal is brought from the order denying the motion. The ap-pellee has failed to file a brief.
The plaintiff’s response to defendant’s motion to dismiss stated that the plaintiff had changed attorneys and the new attorney had moved his office and misplaced her file. A change of attorneys, even when made necessary by misfortune, is not good cause for failure to prosecute for one year. Gulf Appliance Distributors, Inc. v. Long, Fla.1951, 53 So.2d 706; Miller v. Hartley’s, Inc., Fla.App.1957, 97 So.2d 211. An office error by the plaintiff’s attorney and that attorney’s inadvertent failure to prosecute is not such good cause as is contemplated by the rule. See Conklin v. Boyd, Fla.App. 1966, 189 So.2d 401.
The order denying the plaintiff’s motion to dismiss is reversed and the cause is remanded with directions to grant the motion.
Reversed and remanded.
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Murphy White Dairy, Inc. v. Simmons, 405 So. 2d 298 (Fla. 4th DCA 1981)…le [*300] that case involved change of defense counsel, it was followed in cases involving withdrawal of plaintiffs counsel, see, e. g., St. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3d DCA 1975); Florida Power & Light Company v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973), an action that might very well be calculated to move the case along. It is clear, however, that despite Gulf Appliances’ insistence on “some active measure taken by plaintiff,” record activity solely by a defendant is sufficient…
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Carter v. DeCARION, 400 So. 2d 521 (Fla. 3d DCA 1981)…eisel v. Birnholz, 313 So. 2d 125 (Fla. 3d DCA 1975), cert. denied, 330 So. 2d 14 (Fla.1976); Lindquist v. Williams, 262 So. 2d 899 (Fla. 2d DCA 1972), nor problems in obtaining counsel constitute good cause. Cf. Florida Power & Light Co. v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973) (neither change of attorneys nor office error by attorney constitute good cause). Appellant has failed to demonstrate an abuse of discretion by the trial court; we therefore affirm the dismissal. . Fla.R.Civ.P. 1.420(e): Failur…
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CPI Mfg. Co., Inc. v. Industrias ST. Jack's, 870 So. 2d 89 (Fla. 3d DCA 2003)…z v. Watson, 615 So. 2d 750, 753-4 (Fla. 5th DCA 1993) and Golden Triad Carriers, Inc. v. Paco American Corp., 553 So. 2d 247 (Fla. 3d DCA 1989). Affirmed. . In addition, we note that CPI's "good cause” showing was questionable. See FPL v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973) (an officer by the plaintiff's attorney and that attorney's inadvertent failure to prosecute is not such good cause as is contemplated by the rule) (citation omitted). We further point out that the trial court correctly entered th…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lenore Miller v. Hartley's, Inc., 97 So. 2d 211 (Fla. 3d DCA 1957)
- Millard B. Conklin v. Boyd, 189 So. 2d 401 (Fla. 1st DCA 1966)