GREGORY LATIMORE, A MINOR CHILD, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, PEARLINE LATIMORE, AND PEARLINE LATIMORE, INDIVIDUALLY, APPELLANTS,
v.
CLIFFORD MATTHEWS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS PRINCIPAL OF LILLIE C. EVANS ELEMENTARY SCHOOL, AND EDWARD WHIGHAM, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERINTENDENT OF THE DADE COUNTY SCHOOL SYSTEM, APPELLEES
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The appellate court reversed a trial court's dismissal of a negligence action for failure to prosecute, holding that the filing of answers to interrogatories and a motion for discovery by non-stenographic means constituted sufficient affirmative action to prevent dismissal under Florida civil procedure rules.
The court held that filing answers to interrogatories constitutes affirmative action preventing dismissal, and a motion for discovery pursuant to Fla.R.Civ.P. 1.310(b)(4) similarly constitutes such action. The trial court lacked authority to dismiss for failure to prosecute based on docket control without a finding of willful delay by the plaintiff.
[1] Filing answers to interrogatories constitutes affirmative action in a cause for purposes of avoiding dismissal for failure to prosecute.
[2] A motion to permit discovery by means other than stenographic means, filed pursuant to Fla. …
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Join FLexlaw to unlock all legal intelligence“It has been held that the filing of a deposition by a court reporter constitutes affirmative action in a cause.”
Establishes the principle that discovery activities constitute affirmative action preventing dismissal for want of prosecution
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed a complaint in November 1973 and propounded interrogatories in March 1975, which defendants answered on May 9, 1975. Plaintiffs' orig…
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[*1262] PER CURIAM.
By this appeal, plaintiffs question the correctness of a trial court’s dismissing their cause for failure to prosecute.
The record on appeal reveals the following: A complaint was filed in November of 1973. Discovery was taken and, in March of 1975, interrogatories were propounded to the defendant. These were answered on May 9,1975. Original counsel of record for the plaintiffs died in August of 1975. In April of 1976, a motion for substitution of counsel for plaintiffs was filed and a motion to permit discovery by other than stenographic means were filed, pursuant to Fla. R.Civ.P. 1.310(b)(4). These motions were scheduled for hearing on May 28, 1976. Thereafter, the defendants filed a motion to dismiss for failure to prosecute and set this motion at the same time, on May 28, 1976. The court, upon a review of the record, granted the motion to dismiss. This appeal ensued. We reverse.
It has been held that the filing of a deposition by a court reporter constitutes affirmative action in a cause. Licausi v. Airport Transportation Service, Inc., 252 So. 2d 835 (Fla. 4th D.C.A. 1971); Musselman Steel Fabricators, Inc. v. Radziwon, 263 So. 2d 221 (Fla.1972). If this be so, then the filing of answers to interrogatories should be similarly treated. Therefore, the date from which the one-year period would commence to run would be May 9, 1975. Counsel for appellee contends that the motion to substitute counsel does not constitute affirmative action, citing Florida Power & Light Company v. Gilman, 280 So. 2d 15 (Fla. 3rd D.C.A. 1973); St. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3rd D.C.A. 1975). He also contends that the motion to have discovery by other than stenographic means did not constitute affirmative action in the cause.
We may agree with the first position, but with the second we do not. We hold that this motion, pursuant to' Fla.R. Civ.P. 1.310(b)(4), did constitute such action as would successfully prevent a dismissal for want of prosecution. Counsel for the appellee further urges, in support of the order, that the trial court was correct in dismissing the matter under his inherent power to control his docket. There was no finding by the trial court that the plaintiff was wilfully delaying prosecution of the matter and, therefore, under the recent decision in Kenet v. Stein, 326 So. 2d 36 (Fla. 3rd D.C.A. 1976) this is not a good basis to support the trial court’s ruling.
The Order be and the same is hereby reversed, with directions to the trial judge to reinstate the cause.
Reversed and remanded, with directions.
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Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979)…cases not being diligently prosecuted was noted, but it was stated: “This ground should be reserved for those cases in which the court finds that [the] offending plaintiff is purposely dragging its feet.” In Latimore v. Matthews, Fla. 3rd DCA 1976, 340 So. 2d 1261 it was held that a court could not be sustained in a dismissal for want of prosecution under its inherent power to control its docket without a finding that the plaintiff was wilfully delaying prosecution of the matter. In American Salvage and Jobb…
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Nesbitt v. Cmty. Health OF S. Dade, Inc., 566 So. 2d 1 (Fla. 3d DCA 1989)…s body of law. Eastern Elevator, Inc. v. Page, 263 So. 2d 218, 219-20 (Fla.1972); Gulf Appliance Distribs., Inc. v. Long, 53 So. 2d 706 (Fla.1951); Industrial Trucks of Fla., Inc. v. Gonzalez, 351 So. 2d 744 (Fla. 3d DCA 1977); Latimore v. Matthews, 340 So. 2d 1261, 1262 (Fla. 3d DCA 1976); St. Anne Airways Corp. v. Larotonda, 308 [*2] So. 2d 129 (Fla. 3d DCA), cert. denied, 316 So. 2d 295 (Fla.1975). Moreover, the sua sponte administrative order of the chief judge of the circuit court transferring a new circu…
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Greenwell v. Cuiffo, 415 So. 2d 901 (Fla. 3d DCA 1982)…a. 3d DCA 1979). Neither is there a finding in the order of dismissal that the plaintiff was willfully delaying prosecution of the matter so as to support dismissal under the inherent power of the court to control its docket. Latimore v. Matthews, 340 So. 2d 1261, 1262 (Fla. 3d DCA 1976); Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976). Reversed and remanded.…
Previewing 3 of 4 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)
- Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976)
- ST. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3d DCA 1975)
- 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)
- Licausi v. Airport Transp. Serv., Inc., 252 So. 2d 835 (Fla. 4th DCA 1971)