IRVING WALDMAN AND NORTH MIAMI GENERAL HOSPITAL, APPELLANTS,
v.
HARRY FRANKEL, AS ADMINISTRATOR OF THE ESTATE OF MARY FRANKEL, DECEASED, AND HARRY FRANKEL, INDIVIDUALLY, APPELLEES
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Defendants appealed an order denying their motions to dismiss a medical malpractice action for failure to prosecute. The court affirmed the trial judge's denial, holding that the plaintiffs' motion to compel answers to interrogatories constituted sufficient record activity and that the defendants failed to demonstrate an abuse of discretion.
The trial judge did not abuse discretion in denying the motions to dismiss. The plaintiffs' motion to compel answers to interrogatories constituted sufficient record activity, and the defendants' own failure to answer the interrogatories contributed to the delay in bringing the case to trial.
[1] A ruling on a motion to dismiss for failure to prosecute is subject to attack only on the ground that it constitutes an abuse of discretion.
[2] The party seeking to overturn a denial of a motion to dismiss for failure to prosecute bears the heavy burden of demonstrating an abuse of discretion.
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Join FLexlaw to unlock all legal intelligence“A ruling on a motion for order of dismissal for failure to prosecute is subject to attack only on the ground that it constitutes an abuse of discretion and this heavy burden rests with the losing party, in this case the defendants.”
Establishes the standard of review for dismissal motions and allocation of burden of proof
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Join FLexlaw to unlock all legal intelligenceA medical malpractice action was filed on January 16, 1969 by Mary and Harry Frankel against Dr. Irving Waldman and North Miami General Hospital. The …
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HAVERFIELD, Judge.
Defendants appeal an order denying their motions to dismiss for failure to prosecute. On January 16, 1969 plaintiffs, Mary (now deceased) and Harry Prankel, filed a malpractice action against defendant-appellants, Dr. Irving Waldman and North Miami General Hospital, Inc. The cause was set down for trial on September 9, 1974; however, prior thereto, on September 5 plaintiffs filed a motion for continuance, and their attorney filed a motion for leave to withdraw. These motions were granted on September 13.
On September 5, 1975 Stephen Hertz as attorney for plaintiffs filed a notice of appearance along with a set of interrogatories directed to defendant Dr. Waldman. After a lapse of almost one year, plaintiffs on September 2,1976 filed a motion to compel answers to interrogatories but omitted any notice of hearing thereon.
On September 8 Dr. Waldman and North Miami General filed motions to dismiss for failure to prosecute pursuant to Fla.R. Civ.P. 1.420(e).
On September 10 plaintiffs filed a notice of hearing on their September 2 motion to compel. After several hearings on the motions to dismiss for failure to prosecute and the filing of memoranda of law with respect thereto, the trial judge denied these motions to dismiss and defendants appeal the order of denial.
We affirm.
A ruling on a motion for order of dismissal for failure to prosecute is subject to attack only on the ground that it constitutes an abuse of discretion and this heavy burden rests with the losing party, in this case the defendants. Popkin v. Críspen, 213 So. 2d 445 (Fla. 4th DCA 1968); Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So. 2d 126 (Fla. 3d DCA 1975). Furthermore, judicial restraint should be practiced in the court’s inherent power to dismiss actions for want of prosecution to the end that persons have the guarantee and privilege of having their cause adjudicated. Popkin v. Crispen, supra.
Turning to the instant case, we find that plaintiffs’ motion to compel answers to interrogatories constituted sufficient record activity. See, e. g. Musselman Steel Fabricators, Inc. v. Badziwon, 263 So. 2d 221 (Fla.1972). In addition, defendant Dr. Waldman’s failure to answer the interrogatories attributed to the delay in bringing this cause to trial. Cf. Grossman v. Segal, 270 So. 2d 746 (Fla. 3d DCA 1972).
No abuse of discretion has been demonstrated by the defendants and, therefore, the order denying their motions to dismiss is affirmed.
Affirmed.
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Barnes v. Dr. Patricia Ross & the Ladies Ctr. of S. Fla., Inc., 386 So. 2d 812 (Fla. 3d DCA 1980)…that a single record act is sufficient to defeat a motion to dismiss for lack of prosecution, it is clear that almost total inactivity is countenanced under the rule. See, e. g., Flack v. Kuhn, 277 So. 2d 593 (Fla. 4th DCA 1973); Waldman v. Frankel, 343 So. 2d 1325 (Fla. 3d DCA 1977); Hahn v. First National Bank of Delray Beach, 345 So. 2d 345 (Fla. 4th DCA 1977). There appears to us no sound reason why the liberality a court accords to good cause should differ from the liberality a court accords to record act…
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Douglas Slavin, M.D. v. Univ. OF Miami, Inc., 374 So. 2d 606 (Fla. 3d DCA 1979)…PER CURIAM. Affirmed. Leeks v. Dolling, 350 So. 2d 10 (Fla. 4th DCA 1977); Sainer Constructors, Inc. v. Pasco County School Board, 349 So. 2d 1212, 1214 (Fla. 2d DCA 1977); Waldman v. Frankel, 343 So. 2d 1325 (Fla. 3d DCA 1977); Steisel v. Birnholz, 313 So. 2d 125 (Fla. 3d DCA 1975); Dade County v. Moreno, 227 So. 2d 548 (Fla. 3d DCA 1969); Laug v. Murphy, 205 So. 2d 695 (Fla. 4th DCA 1968); Fort Walton Lumber & Supply So. v. Parish, 142 So. 2d 346, 348…
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Rubenstein v. Iolab Corp., 642 So. 2d 818 (Fla. 3d DCA 1994)…lict with the equally compelling principle that judicial restraint should be practiced in the exercise of the court’s inherent power to dismiss an action for want of prosecution, so that the case can be adjudicated on the merits. Waldman v. Frankel, 343 So. 2d 1325 (Fla. 3d DCA 1977). Courts have resolved the conflict by applying the principle which favors the adjudication of a case on its merits to ease the burden on a party appealing an order dismissing an action for failure to prosecute, as compared to the…
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)
- ELI Einbinder, Inc. v. Miami Crystal ICE Co., 317 So. 2d 126 (Fla. 3d DCA 1975)
- Popkin v. Crispen, 213 So. 2d 445 (Fla. 4th DCA 1968)
- Grossman v. Segal, 270 So. 2d 746 (Fla. 3d DCA 1972)