H. G. SMITH D/B/A H. G. SMITH REALTY, APPELLANT,
v.
ST. GEORGE ISLAND GULF BEACHES, INC., A DISSOLVED FLORIDA CORPORATION ET AL., APPELLEES
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Nonrecord activity tending to advance the action is sufficient to prevent dismissal for want of prosecution, even if that activity did not directly involve all defendants.
[1] Nonrecord activity between a plaintiff's counsel and another party's counsel that tends to advance the action is sufficient to prevent dismissal for want of prosecution,…
[2] A plaintiff's obligation is to show progress in the case, not progress between himself and each defendant, to avoid dismissal for want of prosecution.
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Join FLexlaw to unlock all legal intelligencePlaintiff Smith appealed an order dismissing his action for want of prosecution. Other defendants cross-assigned error regarding the denial of their s…
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SMITH, Judge.
Smith, plaintiff in the trial court, appeals from an order dismissing his action against appellees Atkinson and Wilson for want of prosecution. Rules 1.420(e), R.C.P., and 4.2a, F.A.R. Other defendants in the Smith action, John Stocks, St. George Island Gulf Beaches, Inc., and Leisure Properties Ltd., a limited partnership, have cross-assigned error in the trial court’s denial of their similar motion to dismiss. The Smith action seeks recovery of a broker’s commission allegedly contracted for by appellee St. George in connection with sale of its land to cross-appellant Stocks or his principal, cross-appellant Leisure. Smith seeks the same recovery alternatively against cross-appellant Leisure on grounds that its assets acquired from St. George should “in equity and good conscience” be subjected to. the debt; alternatively against cross-appellants Stocks and Leisure on grounds one of them was unjustly enriched by deducting the earned commission from the purchase price paid St. Georgé; alternatively against cross-appellants St. George, Leisure and Stocks and appellees Atkinson and Wilson, stockholders of St. George, for conspiracy to defraud appellant of his commission; and. alternatively against all but St. George for malicious interference with St. George’s contractual relations with appellant.
There was no record activity in the Smith action for more than a year. The question on Smith’s appeal is whether the trial court, in dismissing the action against Atkinson and Wilson, overlooked nonrecord activity sufficient to prevent their dismissal. And, on the cross-appeal, the question is whether the trial court erroneously regarded nonrec-ord activity between Smith’s and Stocks’ counsel sufficient to preserve Smith’s action not only against Stocks but also against St. George and Leisure. Therefore, the issue is whether nonrecord activity may be sufficient to prevent dismissal of plaintiff’s complaint as to three jointly-sued defendants, but insufficient to prevent its dismissal as to two others.
The nonrecord activity on which Smith relies is his participation during the year as a party defendant in other litigation over the same brokerage commission. Shellie Rowell, Smith’s former employee, filed that action to recover his share of the disputed brokerage commission from Smith and Stocks on grounds it was either owed by Stocks or wrongfully relinquished by Smith.
The trial court evidently found, and we agree, that purposeful activity involving Smith’s and Stocks’ counsel in the Rowell action tended to advance the Smith action toward disposition’ in the same sense 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 regard it as irrelevant that the purpose' of’ advancing the Smith action by activity in the’ Rowell case was Smith’s purpose alone, not Stocks’. Stocks’ motion to dismiss for lack of prosecution was properly' denied.
Having found nonrecord áctivity by Smith’s and Stocks’ counsel, the trial court preserved Smith’s action not only against Stocks but.also against St. George and Leisure, in which Stocks was a principal stockholder and partner. Neither-St. George nor Leisure was party to the Rowell action, although their lawyer in the Smith action represented Stocks in both actions. Evidently the trial court considered that the lawyer’s common representation and the business relationship of Stocks, St. George and Leisure effectively extended the influence of activity in Rowell through Stocks to St. George and Leisure, defendants only in Smith. The associational theory did not serve, in the trial court’s view, to save Smith’s action against Atkinson and Wilson.
It is ironic and perhaps characteristic of human endeavor of this kind that a Rule designed to relieve the judiciary of concern for inactive litigation should itself produce such a spate of litigation, full of labored analyses of activity and nonactivity. We think it inappropriate to compound the question by distinguishing between those parties who were touched by nonrecord activity and those who were not. We conceive that any nonrecord activity between Smith’s and Stocks’ counsel which tended to advance the Smith action sufficed to save it not only against Stocks and his associated business entities but also against Atkinson and Wilson, who were jointly sued. Rule 1.420(e) speaks of the dismissal of actions, not parties, for nonprosecution; and in Eastern Elevator, supra, it was recognized that action by one defendant within the year was sufficient to foreclose dismissal at the instance of another defendant. Stated another way, plaintiff’s obligation is only to show progress in the case, not progress between himself and each defendant. DeVaney v. Rumsch, 247 So. 2d 69 (Fla.App. 1st, 1971). To be distinguished are decisions which consider as separate and unique the interests of nominal defendants not served with process or otherwise brought within the court’s jurisdiction. Koppers Co., Inc. v. Victoire Devel. Corp., 284 So. 2d 193 (Fla.1973); Crouse-Hinds Co. v. Capellia, 302 So. 2d 800 (Fla.App. 4th, 1974).
To the extent that the order appealed dismisses Smith’s action, it is
REVERSED, otherwise AFFIRMED.
MILLS, Acting C. J., and MeCRARY, ROBERT L., Jr., Associate Judge, concur.
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Utset v. Campos, 548 So. 2d 834 (Fla. 3d DCA 1989)…Co. v. Heimer, 339 So. 2d 284 (Fla. 3d DCA 1976), cert. denied, 348 So. 2d 948 (Fla.1977); Devaney v. Rumsch, 247 So. 2d 69 (Fla. 1st DCA 1971). . This "exception” has also been referred to in dicta in Smith v. St. George Island Gulf Beaches, Inc., 343 So. 2d 847, 849 (Fla. 1st DCA 1976), and Bowman v. Peele, 413 So. 2d 90, 91 (Fla. 2d DCA), dismissed, 419 So. 2d 1199 (Fla.1982), but was not applied to the facts of the case. We therefore do not interpret these decisions as having adopted such an “exception.”…
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Insua v. Chantres, 665 So. 2d 288 (Fla. 3d DCA 1995)…r failure to prosecute under Rule 1.420(e). See Maler v. Baptist Hosp. of Miami, Inc., 532 So. 2d 79 (Fla. 3d DCA 1988); Estate of Mills v. Florida Ins. Guar. Ass’n, 378 So. 2d 301 (Fla. 3d DCA 1979); Smith v. Saint George Island Gulf Beaches, Inc., 343 So. 2d 847 (Fla. 1st DCA 1976). Under the circumstances, the trial court’s refusal to reinstate the case in accordance with the agreement of the parties is simply inexplicable. See Gold v. Wohl, 617 So. 2d 409 (Fla. 4th DCA 1993). It is even more disturbing th…
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Previewing 3 of 8 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)
- Koppers Co., Inc. v. Victoire Dev. Corp., 284 So. 2d 193 (Fla. 1973)
- The Crouse-Hinds Co. v. Capellia, 302 So. 2d 800 (Fla. 4th DCA 1974)
- Leverenz v. Schmieder, 294 So. 2d 690 (Fla. 3d DCA 1974)
- DeVANEY v. Bernard J. Rumsch, M.D., 247 So. 2d 69 (Fla. 1st DCA 1971)
- Eddings v. Davidson, 302 So. 2d 155 (Fla. 1st DCA 1974)
- Delaney v. Dep't OF Transp., 306 So. 2d 203 (Fla. 1st DCA 1975)