Anthony v. Schmitt

• Decision Date: 28 February 1990
• Docket Number: No. 89-01171,89-01171
• Citation: 557 So.2d 656
• Parties: 15 Fla. L. Weekly D582 Paul E. ANTHONY, individually, and as Personal Representative of the Estate of Jacquelyn Anthony, deceased, and as guardian of Corletta Anthony, a minor daughter of the deceased, Appellant, v. Paul SCHMITT, Michael Del Duca and General Accident Fire & Life Assurance Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 656

557 So.2d 656

15 Fla. L. Weekly D582

Paul E. ANTHONY, individually, and as Personal Representative of the Estate of Jacquelyn Anthony, deceased, and as guardian of Corletta Anthony, a minor daughter of the deceased, Appellant, v. Paul SCHMITT, Michael Del Duca and General Accident Fire & Life Assurance Corporation, Appellees.

No. 89-01171.

District Court of Appeal of Florida Second District.

Feb. 28, 1990.

Robert Alan Rosenblatt and Cynthia A. Greenfield of Robert Alan Rosenblatt, P.A., Miami, for appellant.

Robert E. Doyle, Jr., of Asbell, Hains, Doyle & Pickworth, Naples, for appellee Paul Schmitt.

John W. MacKay, Tampa, for appellees Michael Del Duca and Gen. Acc. Fire & Life Assur. Corp.

ALTENBERND, Judge.

The plaintiff appeals an order dismissing this wrongful death action for failure to prosecute and for failure of the plaintiff's attorney, Robert Alan Rosenblatt, to attend a status conference. Although we do not condone the numerous unexplained delays in the prosecution of this action, we must reverse this dismissal. The action cannot be dismissed for failure to prosecute because the record contains activity in the relevant year which is "something more than a mere passive effort to keep the suit on the docket of the court." Eastern Elevator, Inc. v. Page, 263 So.2d 218, 220 (Fla.1972); Gulf Appliance Distribs. v. Long, 53 So.2d 706, 707 (Fla.1951). The failure of the plaintiff's attorney to attend the status conference, while perhaps justifying sanctions against Mr. Rosenblatt, does not justify the dismissal of his client's long-delayed wrongful death action.

Jacquelyn Anthony died instantaneously in an automobile accident on June 22, 1979. She was twenty-nine years old. She was survived by her husband, Paul E. Anthony, and by her eight-year-old daughter, Corletta. Mr. Del Duca, who was driving a car titled in Mr. Schmitt's name, allegedly caused the accident.

The wrongful death action was promptly filed in the name of Mr. Anthony, as personal representative, in December 1979. At its inception, the case was delayed, or at least complicated, by the issue of the ownership of the car that Mr. Del Duca was driving. Mr. Schmitt claimed that he was merely the car's titleholder and that he had sold it to another person who was making installment payments and who was the beneficial owner. Extensive discovery was taken to determine whether Mr. Schmitt could be liable under the dangerous instrumentality doctrine.

Mr. Del Duca also delayed this case by the exercise of his fifth amendment rights and his general refusal to testify. Mr. Del Duca had consumed alcohol prior to this accident and was charged with manslaughter because of Mrs. Anthony's death. After one successful appeal, he was tried and convicted of reckless driving in June 1983. See Del Duca v. State, 422 So.2d 40 (Fla. 2d DCA 1982); Del Duca v. State, 459 So.2d 1046 (Fla. 2d DCA 1984). This court affirmed the conviction in October 1984. ¹

Between October 1984 and March 1986, the record reflects that this case was set for trial on two occasions. A trial scheduled in November 1985 was continued for the convenience of Mr. Del Duca's attorney. A trial scheduled in March 1986 was continued to accommodate a vacation previously scheduled by Mr. Rosenblatt and to permit the trial judge to recuse himself.

Between March 1986 and April 1987, the record contains little to explain why this case was not prosecuted to judgment. In the spring of 1987, Mr. Anthony became terminally ill. He died in October 1987. In November 1987, the defendants moved to dismiss this action for failure to prosecute. Although there had been no record activity for more than a year before this motion, the trial court found that the personal representative's ill-health and ultimate death constituted good cause for the action to remain pending. See Schlakman v. Helliwell, Melrose & DeWolf, 519 So.2d 14 (Fla. 3d DCA 1987). The order denying this first motion to dismiss for failure to prosecute was filed on December 28, 1987. ²

The next activity in the record occurred 364 days later. On December 27, 1988, the plaintiff filed a request to produce and a notice of service of interrogatories to the defendants. The request to produce asked the defendants to produce: 1) any statements obtained from the plaintiff or the plaintiff's family since December 1987; and 2) any documents that the defendants planned to introduce at trial which had been obtained from witnesses. The interrogatories asked the defendants: 1) to disclose any new witnesses; and 2) to provide addresses for two specific witnesses who had been previously disclosed without addresses. We note that both witnesses had testified in the second criminal trial and one, William Kehoe, had been a key witness for Mr. Del Duca concerning his sobriety.

Upon receipt of these discovery requests, the defendants again moved to dismiss the action for failure to prosecute. The defendants argued that the discovery requests were not meaningful acts of prosecution. Nevertheless, the defendants subsequently answered the discovery. On February 2, 1989, the trial court entered an order setting the case for status conference on March 1, 1989. A few days later, plaintiff's counsel filed a notice to set cause for trial.

Plaintiff's counsel failed to appear for the status conference. He had planned to appear by telephone; however, for reasons that appear disputed in the record, no telephone call was received by the court. The status conference took place without him, and the case was scheduled as the first case on the June 12, 1989, trial docket.

Following the status conference, the defendants scheduled their motions to dismiss for March 21, 1989. At that hearing, the trial court reviewed the dismal record of prosecution and determined that the discovery requests were not sufficient activity to justify the further prosecution of the wrongful death action. Without prior notice to the plaintiff and with no motion of record, the trial court also decided that the action should be dismissed because plaintiff's counsel failed to attend the status conference. Following entry of the order of dismissal on both alternative grounds, plaintiff's counsel filed a motion for rehearing with affidavits in an effort to explain his absence from the status conference. The trial court denied the motion for rehearing, and this appeal followed.

I. THE DISMISSAL FOR FAILURE TO PROSECUTE

Florida Rule of Civil Procedure 1.420(e) establishes a two-step test to determine whether an action may be dismissed for failure to prosecute. First, the defendant must establish that there has been no record activity for the year preceding the motion. If there has been no record activity within the year, then the plaintiff is given an opportunity to establish good cause in writing why the action should remain pending. The analysis during the first step favors the plaintiff. So long as the plaintiff's efforts are not "mere passive effort[s] to keep the suit on the docket," the plaintiff prevails. Eastern Elevator, Inc. v. Page, 263 So.2d 218, 220 (Fla.1972). During the second step, however, the analysis favors the defendant, and the plaintiff has a "high" burden to establish good cause. American Eastern Corp. v. Henry Blanton, Inc., 382 So.2d 863, 865 (Fla. 2d DCA 1980). This case involves an analysis of only the first step. The record is clear that the plaintiff would fail the second step if it were reached.

The courts have experienced difficulty describing the dividing line between marginally active prosecution and "mere passive" prosecution during the year preceding the motion to dismiss. Usually, the plaintiff can rely upon the activities of others to constitute record activity. ³ This activity is not created by the plaintiff, and the plaintiff is not typically obligated to evaluate its active/passive character. Nevertheless, motions for substitution of counsel, ⁴ motions to dismiss for failure to prosecute, ⁵ orders to show cause why the actions should not be dismissed, ⁶ and other actions by the court or the defendants ⁷ have been regarded as insufficient to pass the "mere passive" test. Activity by the plaintiff during the relevant year has been subjected to closer review because the plaintiff controls that activity and can intentionally misuse it to evade rule 1.420(e).

It is well established that documents filed of record concerning interrogatories, requests for production, and other discovery may constitute record activity for purposes of rule 1.420(e). ⁸ The difficult issue presented by this case is whether such documents, when filed by the plaintiff, are always sufficient record activity to restart the prosecution clock or whether the documents must have some degree of merit before they count as record activity. The plaintiff argues that essentially any document which is filed to reflect discovery is sufficient record activity to prevent dismissal of an action. The plaintiff maintains that the trial court does not have the authority or discretion to evaluate the true practical value of the discovery as activity "designed to move the case forward toward a conclusion on the merits or to hasten the suit to judgment." Barnett Bank of East Polk County v. Fleming, 508 So.2d 718, 720 (Fla.1987).

To a large degree, the plaintiff's attorney relies upon the third district's decision in Santa v. Thermo-Air Service, Inc., 506 So.2d 1170 (Fla. 3d DCA 1987). In that case, this same attorney filed discovery documents that were very similar to the documents filed in this case. Having received a favorable ruling concerning his tactics in the third district, plaintiff's counsel asks for the same gift from Santa in this district. While we are constrained to rule in favor of the plaintiff, we hold that trial courts do have the authority to decide whether the discovery is activity conducted with an end toward concluding the case on the merits, or whether it is merely activity...