American Salvage and Jobbing Co., Inc. v. Salomon, s. 78-473
| Decision Date | 20 February 1979 |
| Docket Number | Nos. 78-473,78-1586,s. 78-473 |
| Parties | AMERICAN SALVAGE AND JOBBING COMPANY, INC., a Florida Corporation, Appellant, v. Jacque SALOMON, formerly d/b/a Sun Village Motel, and Sadie Salomon, Appellees. |
| Court | Florida District Court of Appeals |
Klein, Oshinsky & Solomon and Michael B. Solomon, Hallandale, for appellant.
Saks & Salomon and Warren M. Salomon, Miami, for appellees.
Before BARKDULL, HUBBART and SCHWARTZ, JJ.
On December 22, 1977, the trial judge granted the defendants' motion, filed on November 1, 1977, to dismiss the cause for lack of prosecution. The case was dismissed despite the fact that the plaintiff had filed and served interrogatories and had filed and noticed a hearing on a motion to compel answers to those interrogatories notwithstanding defendants' objections, all within one year prior to the filing of the motion to dismiss. 1 The plaintiff appeals and we reverse.
We have examined the "record activity" represented by the interrogatories and the plaintiff's attempts to compel answers to them and find that the activity was constructively related to a good faith prosecution of the plaintiff's case. That activity therefore could not properly have been stricken or disregarded in the consideration of the contention that the action had not been diligently prosecuted. See Eastern Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972); Bay Colony Office Building Joint Venture v. Wachovia Mortgage Co., 342 So.2d 1005 (Fla. 4th DCA 1977); Citizens and Southern Realty Investors v. Lastition, 332 So.2d 357 (Fla. 4th DCA 1976); Slatko v. Virgin, 328 So.2d 499 (Fla. 3d DCA 1976). Because this is the case, the trial court lacked authority to dismiss the case for lack of prosecution under the provisions of F.R.Civ.P. 1.420(e) as amended by the addition of the underscored language, effective January 1, 1977:
The committee note to the amendment states:
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