JOHN W. SHIELDS, APPELLANT,
v.
JAMES E. MOORE, JR., APPELLEE
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The court held that the plaintiff's counsel's bare assertions did not constitute good cause for delay, and the rule requires good cause to be in writing.
The trial court dismissed an action for failure to prosecute. The plaintiff sought reinstatement, offering only oral assertions that the delay was not…
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LETTS, Judge.
The trial court reinstated an action pursuant to Rule 1.420(e) Fla.R.Civ.P. We reverse.
This cause was set for trial on January 21st, 1976 and postponed upon request of the plaintiff until “renotice by either party” by order dated January 19th, 1976.
On April 5, 1977 the trial court sua sponte moved the dismissal of the action pursuant to Rule 1.420(e) Fla.R.Civ.P., Failure to Prosecute.
The only evidence in the record pertinent to “good cause” is the bare assertion by plaintiff’s counsel that the delay “is not the fault of the plaintiff” and that the plaintiff had “been (in) communication with the Department of Transportation (not the defendant) with regard to determining the assets of the defendant”.
We are of the opinion that such explanations do not constitute good cause. True, we are not privy to what other cause the plaintiff may have expressed orally at the hearing on the reinstatement, but the rule unequivocally requires that the good cause be in writing at least five days before the hearing. See Koppers Co., Inc. v. Victoire Development Corp., 284 So. 2d 193 (Fla. 1973).
We therefore reverse the order of reinstatement and direct that the case be dismissed under the authority of Laug v. Murphy, 205 So. 2d 695 (Fla. 4DCA 1968).
REVERSED.
CROSS and DAUKSCH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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F. M. C. Corp. v. Chatman, 368 So. 2d 1307 (Fla. 4th DCA 1979)…e we agree that activity not of record is insufficient by itself, good cause may still be available if there exists other explanations amounting to something more than mere contacts between the litigant and potential witnesses. See Shields v. Moore, 352 So. 2d 139 (Fla.4th DCA 1977). Adapting this rationale to the case at bar we find that the affidavit detailing the non-record activity merely reflects telephone calls, conférences and letters between the plaintiff’s attorney, his client and potential witnesse…
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Martinez v. Joaquin Fuenmayor, M.D., 533 So. 2d 935 (Fla. 3d DCA 1988)…1.420(e). Indeed, appellant’s written response to the motion to dismiss made no effort to excuse the lack of record activity in this cause; appellant’s oral argument at the hearing on the said motion cannot cure this fatal defect. Shields v. Moore, 352 So. 2d 139, 140 (Fla. 4th DCA 1977). Affirmed.…
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The Greyhound Corp. v. Prudencio Estevez and Josephine Estevez, 360 So. 2d 41 (Fla. 3d DCA 1978)…why the action should remain pending five days prior to the hearing on the motion. Accordingly, the order appealed is reversed and the cause remanded with directions to dismiss the cause of action pursuant to the above cited rule. Shields v. Moore, 352 So. 2d 139 (Fla. 4th DCA 1977); Metropolitan Transit Authority v. Porter, 328 So. 2d 573 (Fla. 3d DCA 1976). Reversed and remanded with directions.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Laug v. Murphy, 205 So. 2d 695 (Fla. 4th DCA 1968)
- Koppers Co., Inc. v. Victoire Dev. Corp., 284 So. 2d 193 (Fla. 1973)