EDWARD C. SHANLEY, APPELLANT,
v.
PHILLIP MORTON ALLEN, APPELLEE
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In this interlocutory appeal, the Florida First District Court of Appeal reversed a trial court's order setting aside a dismissal for lack of prosecution, holding that the plaintiff's counsel's misimpressions about continuing representation and uncertainty about his responsibilities do not constitute 'good cause' to reinstate a stalled lawsuit.
The court held that the trial court erred in setting aside the dismissal because the plaintiff's counsel's misimpressions and erroneous assumptions do not constitute 'good cause' under Rule 1.420(e), and the hardship to the defendant is not grounds for reinstatement. The dismissal should stand.
[1] A trial court may consider a showing of "good cause" to avoid dismissal for lack of prosecution, even if presented less than five days before the scheduled hearing.
[2] Misimpressions and erroneous assumptions by counsel do not constitute "good cause" to keep an action pending when the plaintiff has failed to prosecute.
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“No justifiable reason was shown for the persistent failure of plaintiff's counsel to prosecute the ease or place it in the hands of another for prosecution. The misimpres-sions and erroneous assumptions of plaintiff's counsel do not constitute 'good cause why the action should remain pending.'”
Establishes the holding that attorney misimpressions and confusion about representation responsibilities do not constitute good cause to reinstate a dismissed action.
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Join FLexlaw to unlock all legal intelligencePlaintiff filed suit in October 1974 for injuries from a December 1970 automobile accident, barely within the statute of limitations. After issue was …
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SMITH, Judge.
The defendant below presents this interlocutory appeal from an order setting aside, at plaintiff’s request, a judgment dismissing plaintiff’s action for lack of prosecution.
In October 1974, barely within the period of the statute of limitations, plaintiff sued defendant for injuries received in a December 1970 automobile accident. After issue was joined, plaintiff’s attorney was suspended from the practice of law for 6 months. No action was taken in the case during that period or for more than 6 months afterward. Abundant notice was then given plaintiff’s counsel that the action would be dismissed for failure to prosecute unless “[g]ood cause shall be shown . at least five days before the hearing” set for January 29, 1976. One day before the scheduled hearing, plaintiff’s counsel filed a motion to set aside the dismissal, reciting that he had the impression, upon his suspension, that his former law partner would continue the representation and he was uncertain following his reinstatement whether he still had responsibility for the case.
The trial court set aside the judgment of dismissal. This appeal followed. We do not consider that a trial court is disabled by Rule 1.420(e), F.C.P., to consider “good cause” shown by the defaulting party less than five days before the scheduled hearing.
Nevertheless, we conceive that the trial court erred in setting aside the judgment of dismissal in this case. No justifiable reason was shown for the persistent failure of plaintiff’s counsel to prosecute the ease or place it in the hands of another for prosecution. The misimpres-sions and erroneous assumptions of plaintiff’s counsel do not constitute “good cause why the action should remain pending.” Rule 1.420(e), R.C.P. See Bakewell v. Shepard, 310 So. 2d 765 (Fla.App. 2d, 1975) (misunderstanding with counsel to be associated); Fla. Power & Light Co. v. Gilman, 280 So. 2d 15 (Fla.App. 3d, 1973) (change of attorneys); Conklin v. Boyd, 189 So. 2d 401 (Fla.App. 1st, 1966) (secretarial inadvertence); Miller v. Hartley’s, Inc., 97 So. 2d 211 (Fla.App. 3d, 1957) (attorney too busy with other work); Railway Exp. Agency v. Hoagland, 62 So. 2d 756 (Fla.1952) (inadvertence).
Nor is the evident hardship to appellee good cause for reinstatement. Laug v. Murphy, 205 So. 2d 695 (Fla.App. 4th, 1968).
The order setting aside the judgment is VACATED and the case is remanded for dismissal.
RAWLS, Acting C. J., and MILLS, J., concur.
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Norflor Constr. Corp. v. City OF Gainesville & CH2M Hill Se., Inc., 512 So. 2d 266 (Fla. 1st DCA 1987)…ivity. American Eastern Corporation v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980). Events 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…
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Togo's Eatery OF Fla., Inc. v. Frohlich, 526 So. 2d 999 (Fla. 1st DCA 1988)…DCA 1987), review denied, 520 So. 2d 585 (Fla.1988). In Norf-lor, the court listed three examples 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…
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Maler v. Baptist Hosp. OF Miami, Inc., 532 So. 2d 79 (Fla. 3d DCA 1988)…miss for lack of prosecution under Fla.R.Civ.P. 1.420(e) because no prejudice to the defendants/appellees was shown due to the aforesaid late-filed affidavit (the affidavit was filed four days late under Fla.R.Civ.P. 1.420(e)), see Shanley v. Allen, 346 So. 2d 548, 549 (Fla. 1st DCA 1976), and (2) the subject affidavit states good cause for the lack of record activity for over one year in the instant case because it appears, without dispute, there was extensive record activity in an identical lawsuit between…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ry. Exp. Agency, Inc. v. Hoagland, 62 So. 2d 756 (Fla. 1952)
- Lenore Miller v. Hartley's, Inc., 97 So. 2d 211 (Fla. 3d DCA 1957)
- Laug v. Murphy, 205 So. 2d 695 (Fla. 4th DCA 1968)
- Bakewell v. Shepard, 310 So. 2d 765 (Fla. 2d 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)
- Millard B. Conklin v. Boyd, 189 So. 2d 401 (Fla. 1st DCA 1966)