JOHN A. BAKEWELL, APPELLANT,
v.
JAMES M. SHEPARD, APPELLEE
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Appellant appealed the trial court's denial of his motion to dismiss for lack of prosecution. The court reversed, holding that internal misunderstandings between opposing counsel and the trial judge's failure to enter a timely order on jurisdiction did not constitute good cause to deny the motion.
The court held that neither the misunderstanding between appellee's counsel and the associated counsel nor the trial judge's failure to enter an order constituted good cause to deny the motion. Nonrecord activity between counsel and a third party does not constitute sufficient action under the rule, and neither does miscommunication among counsel. The trial court's error was not excused by the judge's inaction.
[1] A misunderstanding between a party's counsel and a third party does not constitute sufficient "action" for purposes of Rule 1.420(e) regarding dismissal for failure to pr…
[2] A party's inactivity for over a year, even in the face of a court's failure to rule on a pending motion, is not excused by the court's inaction when no effort has been ma…
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Join FLexlaw to unlock all legal intelligence“The nonrecord activity in the instant case between appellee's counsel and a third party does not constitute sufficient "action" contemplated by RCP 1.420(e).”
Establishes that internal communication between attorneys does not satisfy the rule requiring action that contacts the opposing party or court
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Join FLexlaw to unlock all legal intelligenceThe last recorded activity in the case was an answer to a request for admission filed by the plaintiff on September 18, 1972. A hearing on jurisdictio…
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HOBSON, Acting Chief Judge.
This interlocutory appeal is from an order denying appellant’s motion to dismiss for lack of prosecution. The trial judge did not give her reason, but found that good cause existed to deny the motion.
The last recorded activity in the cause was an answer to request for admission filed by appellee-plaintiff on September 18, 1972. A hearing had been held on July 20, 1972, before John Justice on appellant’s motion to abate. This hearing was not recorded, and no order was entered after that hearing. Judge Justice retired on January 1, 1973, without entering an order upon the question of jurisdiction raised by appellant.
On December 4, 1973, appellant filed a motion to dismiss the action for failure to prosecute pursuant to RCP 1.420(e). In response, appellee’s counsel timely filed two affidavits, showing there had been a misunderstanding between appellee’s counsel, Jim C. Jones, and counsel he elected to associate to handle the case. Mr. Jones stated that in February or March of 1973, he discussed the claim with Warren Goodrich and on March 23, 1973, he forwarded the file to Mr. Goodrich, assuming that he would handle the case from that point forward. He further stated that he did not contact Mr. Goodrich’s office again until the filing of the motion to dismiss. Mr. Goodrich’s affidavit substantiated Mr. Jones’ statement, averring that no decision was ever made by his office to accept the case, and that after the motion to dismiss had been filed he discovered that a misunderstanding had existed as to who was actively handling the case.
Appellee does not claim that either the court or appellant’s counsel had knowledge of the attempt to associate counsel.
While nonrecord activity has been held to be sufficient “action” under Rule 1.420(e), Whitney v. Whitney, Fla.App.2nd 1970, 241 So. 2d 436; Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So. 2d 221, such “action” of necessity involves actions which result in contact by one party with the opposing party or the court. Wells v. Van Arnam, Fla.App.1st 1973, 271 So. 2d 186; Castle v. Struhl, Fla.App.3rd 1974, 293 So. 2d 798. The nonrecord activity in the instant case between appellee’s counsel and a third party does not constitute sufficient “action” contemplated by RCP 1.420(e). Neither does the misunderstanding between appel-lee’s counsel and counsel to be associated justify the trial court’s finding of “good cause.” See Miller v. Hartley’s, Inc., Fla.App.3rd 1957, 97 So. 2d 211; Conklin v. Boyd, Fla.App.1st 1966, 189 So. 2d 401; Florida Power & Light Company v. Gilman, Fla.App.3rd 1973,280 So. 2d 15.
In the affidavit filed by appellee’s counsel in response to the motion to dismiss, no mention was made of the failure of Judge Justice to enter an order after the hearing held on July 20, 1972, on the question of jurisdiction. Although appellee did not show good cause in writing five days before the hearing, [See RCP 1.420(e)], he now argues that the trial court could have found that the inaction of the appellee was occasioned by the failure of Judge Justice to enter an order or rule on the question of jurisdiction.
Appellant’s motion to dismiss for failure to prosecute was filed more than sixteen months after the hearing before Judge Justice, and eleven months after Judge Justice had retired, and yet no effort was ever made to get a ruling from Judge Justice or his successor. This was ample time to secure a ruling on the question. Under the circumstances, failure of the court to dispose of the motion was not sufficient excuse for appellee’s inactivity for more than a year. Neither of the grounds individually was sufficient “good cause” contemplated by the rule and, being so, collectively, they were not sufficient.
The order denying appellant’s motion to dismiss is reversed and the cause is remanded with directions to grant the motion.
Reversed and remanded.
GRIMES, J., and BERANEK, JOHN RUSSELL, Associate Judge, concur.
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Norflor Constr. Corp. v. City OF Gainesville & CH2M Hill Se., Inc., 512 So. 2d 266 (Fla. 1st DCA 1987)…ents which have been held not good cause under Rule 1.420(e) include: (1) an attorney’s misrepresentations and erroneous assumptions, Shanley v. Allen, 346 So. 2d 548 (Fla. 1st DCA 1976); (2) misunderstandings between attorneys, Bakewell v. Shepard, 310 So. 2d 765 (Fla. 2d DCA 1975); and (3) settlement negotiations which fail to reach fruition, Appraisal Group, Inc. v. Visual Communications, Inc., 426 So. 2d 1155 (Fla. 3d DCA 1983). Based on the foregoing, the settlement negotiations, nonrecord conferences, c…
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Togo's Eatery OF Fla., Inc. v. Frohlich, 526 So. 2d 999 (Fla. 1st DCA 1988)…of non-record activity deemed insufficient to constitute good cause: (1) an attorney’s misrepresentations and erroneous assumptions, Shanley v. Allen, 346 So. 2d 548 (Fla. 1st DCA 1976); (2) misunderstandings between attorneys, Bakewell v. Shepard, 310 So. 2d 765 (Fla. 2d DCA 1975); and (3) settlement negotiations which fail to reach fruition, Appraisal Group, Inc. v. Visual Communications, Inc., 426 So. 2d 1155 (Fla. 3d DCA 1983). In addition, premature filing of a Rule 1.420(e) motion is not the record act…
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The Pub. Health Tr. OF Dade Cnty. v. Diaz, 529 So. 2d 682 (Fla. 1988)…v. Chatman, 368 So. 2d 1307 (Fla. 4th DCA), cert. denied, 379 So. 2d 203 (Fla.1979); Daurelle v. Beech Aircraft Corp., 341 So. 2d 204 (Fla. 4th DCA 1976), cert. denied, Delgado v. Beech Aircraft Corp., 354 So. 2d 980 (Fla.1977); Bakewell v. Shepard, 310 So. 2d 765 (Fla. 2d DCA 1975); Castle v. Struhl, 293 So. 2d 798 (Fla. 3d DCA 1974); Florida Power & Light Co. v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973). Cf. Barnes v. Ross, 386 So. 2d 812 (Fla. 3d DCA 1980). The thrust of the opinion below is that by-virtue…
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
- Musselman Steel Fabricators, Inc. v. Radziwon, 263 So. 2d 221 (Fla. 1972)
- Lenore Miller v. Hartley's, Inc., 97 So. 2d 211 (Fla. 3d DCA 1957)
- Whitney v. Whitney, 241 So. 2d 436 (Fla. 2d DCA 1970)
- Glover v. State, 280 So. 2d 15 (Fla. 1st DCA 1973)
- Fla. Power & Light Co. v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973)
- Millard B. Conklin v. Boyd, 189 So. 2d 401 (Fla. 1st DCA 1966)
- Wells v. Carl E. VAN Arnam, M.D., 271 So. 2d 186 (Fla. 1st DCA 1973)
- Connell v. Fralix, 293 So. 2d 798 (Fla. 3d DCA 1974)