JACK HENRY LEVERENZ, APPELLANT,
v.
RALPH J. SCHMIEDER AND RALPH F. SCHMIEDER, APPELLEES
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A trial court dismissed a personal injury negligence complaint for failure to prosecute under Florida Rules of Civil Procedure 1.420(e) after finding no action for over one year. The appellate court reversed, holding that non-record activity—specifically, attorney correspondence requesting and receiving a medical report—constituted sufficient prosecutive action to avoid dismissal.
The court held that non-record activity is sufficient to satisfy the 'or otherwise' provision of RCP 1.420(e), and that the receipt of a medical report through attorney correspondence constitutes sufficient prosecutive action to avoid dismissal for failure to prosecute. The trial court erred in dismissing the case.
[1] Non-record activity can be sufficient to avoid dismissal for failure to prosecute under RCP 1.420(e).
[2] "Action" contemplated by RCP 1.420(e) for prosecuting a case involves actions that result in contact by one party with the opposing party or the court.
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Join FLexlaw to unlock all legal intelligence“It is well established that non-record activity is sufficient under the "or otherwise" provision of RCP 1.420(e).”
Establishes the foundational principle that prosecutive activity need not be formally recorded.
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Join FLexlaw to unlock all legal intelligencePlaintiff filed a personal injury complaint in 1971 against defendants for alleged negligence. The last recorded activity was the filing of a depositi…
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PER CURIAM.
Plaintiff-appellant seeks review of the trial court’s order dismissing his complaint for failure to prosecute pursuant to RCP 1.420(e), 30 F.S.A. In 1971 plaintiff-appellant filed a complaint for personal injuries resulting from the alleged negligence of the defendant-ap-pellee. The last recorded activity in this cause was the filing of the deposition of James D. Hanson, M.D. on April 12, 1972. One year and one day later on April 13, 1973 counsel for defendant filed a motion to dismiss wherein he alleged that plaintiff had taken no action by filing of pleadings, order of court or otherwise actively pursued the instant lawsuit in excess of one year. A hearing was held thereon and the parties submitted memoranda of law in support of their respective positions.
On May 23, 1973 the trial judge entered an order dismissing the cause on the grounds that no action had been taken for a period in excess of one year. Thereafter, appellant moved for rehearing of the order of dismissal.
However, after a hearing was held thereon, the judge denied the motion. Plaintiff appeals from the order of dismissal.
It is well established that non-record activity is sufficient under the “or otherwise” provision of RCP 1.420(e). Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So. 2d 221 and cases cited therein. The “action” contemplated thereunder in prosecuting a case of necessity involved actions which result in contact by one party with the opposing party or the court. Wells v. Van Arnam, M.D., Fla.App.1973, 271 So. 2d 186.
The record in the case sub judice contains the affidavit of Charles Green who states therein that he was employed as an attorney by the Law Offices of J. Leon Coleman and was responsible for the defense of this lawsuit and that during the one year period of alleged inactivity he requested and received from plaintiffs counsel the medical report of Dr. Demos.
Thus, defendant’s allegation in the motion for dismissal that there has been no activity in the instant action for over one year is inaccurate.
We conclude that the receipt of the above medical report is sufficient activity and, therefore, the trial judge erred in failing to reinstate the cause for the reason that there was activity, even though it was not of record. Cf. Whitney v. Whitney, Fla.App.1970, 241 So. 2d 436, Dukes v. Chemicals, Inc., Fla.App.1973, 277 So. 2d 298.
Accordingly, the order of dismissal is hereby reversed and the cause remanded with directions to reinstate the instant action.
Reversed and remanded.
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ST. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3d DCA 1975)…sition that the notice of appearance constituted sufficient action within the rule. See, Eastern Elevator, Inc., Fla. 1972, 263 So. 2d 218; Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So. 2d 221; Leverenz v. Schmieder, Fla.App.1974, 294 So. 2d 690; Dukes v. Chemicals, Inc., Fla.App. 1973, 277 So. 2d 298; Mantiega v. City of Miami, Fla.App. 1972, 268 So. 2d 537; and, Rosenfeld v. Glickstein, Fla. App.1967, 200 So. 2d 242. We have studied each of these cases, and find them distinguishable from…
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Smith v. ST. George Island Gulf Beaches, Inc., 343 So. 2d 847 (Fla. 1st DCA 1976)…se that'-nonrecord exchange of information-and’evidence may be said to advance an action. See Musselman Steel Fabricators, Inc. v. Radziwon, 263 So. 2d 221 (Fla.1972); Ed-dings v. Davidson, 302 So. 2d 155 (Fla.App. 1st, 1974); Leverenz v. Schmieder, 294 So. 2d 690 (Fla.App. 3d, 1974), cert. den. Fla., 306 So. 2d 203. Even if initiative in the Rowell activity lay with Stocks’ counsel, participation by Smith’s counsel was not passive but purposeful. Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla.1972).’ We…
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Eddings v. Davidson, 302 So. 2d 155 (Fla. 1st DCA 1974)…rtroom, and correspondingly hastens the suit toward judgment.” (Emphasis added. 263 So. 2d at pages 222 and 223) Following the Supreme Court’s Mussel-man decision, our sister Court of the Third District, in Leverenz v. Schmieder, Fla. App.3rd 1974, 294 So. 2d 690, under circumstances factually similar to those sub ju-dice, held as follows: “It is well established that nonrecord activity is sufficient under the ‘or otherwise’ provision of RCP 1.420(e). Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972,…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Musselman Steel Fabricators, Inc. v. Radziwon, 263 So. 2d 221 (Fla. 1972)
- Whitney v. Whitney, 241 So. 2d 436 (Fla. 2d DCA 1970)
- Wells v. Carl E. VAN Arnam, M.D., 271 So. 2d 186 (Fla. 1st DCA 1973)
- Dukes v. Chems., Inc., 277 So. 2d 298 (Fla. 2d DCA 1973)