SIDNEY STEISEL ET AL., APPELLANTS,
v.
STANDFORD BIRNHOLZ, APPELLEE
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This case involves an appeal from a trial court's denial of a motion to dismiss for lack of prosecution. The appellate court reversed the trial court's decision, finding that settlement negotiations outside the record did not constitute sufficient "good cause" to avoid dismissal under the relevant rule.
No, settlement negotiations conducted outside the court record do not constitute "good cause" for avoiding dismissal for lack of prosecution. The court held that affirmative action directed toward the disposition of the cause is required.
[1] A party's passive effort to settle litigation outside the court record does not constitute "good cause" for avoiding dismissal for lack of prosecution under Rule 1.420(e)…
[2] Action taken to hasten a suit to judgment, whether within or outside the court record, is required to avoid dismissal for lack of prosecution.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the court denied the motion because of the alleged settlement negotiations, in the context of the instant case, the fact that one of the parties to the litigation discussed a settlement does not constitute the “good cause” contemplated and required by the statute.”
Establishes that settlement discussions alone are insufficient for 'good cause'.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe plaintiff filed an action for attorney fees in November 1972. After a period of inactivity, the defendants moved to dismiss for lack of prosecutio…
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PER CURIAM.
This is an interlocutory appeal by the defendants from an order of the trial court denying a motion to dismiss for lack of prosecution in an action for attorneys fees.
The original complaint was filed on November 10, 1972. On November 13, 1973, the defendants filed a notice of taking the plaintiff’s deposition, which is the last pleading or paper of record in the court file until December 3, 1974, when the defendants filed a motion to dismiss for lack of prosecution as provided in Rule 1.420(e) RCP. The plaintiff filed a written response and a hearing was held. The plaintiff indicated that some settlement negotiations had taken place between himself and defendants’ counsel outside the record within the one year period. The trial court entered an order denying the motion to dismiss without stating a reason therefor, and this interlocutory appeal ensued.
Close scrutiny of the record on appeal fails to disclose any basis in fact or law for denial of the motion to dismiss. If the court denied the motion because of the alleged settlement negotiations, in the context of the instant case, the fact that one of the parties to the litigation discussed a settlement does not constitute the “good cause” contemplated and required by the statute. See Atlantic Coast Line Railroad Company v. Hill, Fla.1955, 76 So. 2d 861, 863, and cases cited therein. The purpose of Rule 1.420(e) “ . . .is best served by recognizing and encouraging as sufficient ‘prosecution,’ action on the part of either party which is more than ‘a mere passive effort,’ when it is an affirmative act directed toward the disposition of the cause.” Eastern Elevator, Inc. v. Page, Fla. 1972, 263 So. 2d 218, 220. “Necessary ‘action’ is not confined to acts within the record, although of course the act must be ‘intended and calculated to hasten the suit to judgment.’ ” Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So. 2d 221, 222. Neither of these standards having been met in this case, we reverse the order of the trial court and direct that the action be dismissed under Rule 1.420(e), RCP. Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Stanford Birnholz v. Blake, 399 So. 2d 375 (Fla. 3d DCA 1981)…er non-record activity of more than one year in the Birnholz-Steisel action (Steisel I), Steisel filed a motion to dismiss for want of prosecution. The motion was denied by the trial court but reversed by this court on appeal in Steisel v. Birnholz, 313 So. 2d 125 (Fla.3d DCA 1975) on May 20, 1975. On June 18, 1975, petition for rehearing was denied. The Florida Supreme Court denied certiorari on March 9, 1976 [Steisel v. Birnholz, 330 So. 2d 14 (Fla. 1976)]. On May 2, 1975, prior to our decision in Steisel v…
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Carter v. DeCARION, 400 So. 2d 521 (Fla. 3d DCA 1981)…by its showing of good cause for failure to prosecute. It contends that settlement negotiations between the parties and the necessity of substituting counsel for appellant constituted good cause. Neither settlement negotiations, Steisel 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)…
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Standford Birnholz v. Steisel, 338 So. 2d 862 (Fla. 3d DCA 1976)
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)
- Musselman Steel Fabricators, Inc. v. Radziwon, 263 So. 2d 221 (Fla. 1972)
- Atl. Coast Line R.R. Co. v. Hill, 76 So. 2d 861 (Fla. 1955)