Cristancho v. Village Homes in Bonaventure Homeowners Ass'n, Inc., 90-1837

• Decision Date: 05 June 1991
• Docket Number: No. 90-1837,90-1837
• Citation: 580 So.2d 658
• Parties: Gabriel CRISTANCHO, Maria Cristancho, Santo Mazzei, Maria Mazzei, individually and on behalf of all those similarly situated, Appellants, v. VILLAGE HOMES IN BONAVENTURE HOMEOWNERS ASSOCIATION, INC., a Florida corporation not-for-profit, Gale Venture Corp., a Florida corporation, Bon West Inc., a Florida corporation d/b/a Village Homes in Bonaventure, a Florida joint venture, Robert J. Gale, Henry E. Marks, Eric D. Isenbergh, Arnold H. Gottfried, Stan Fried, Shirley Reeves, Ron Grossman, and Joe Heffernan, jointly and severally, Appellees. 580 So.2d 658, 16 Fla. L. Week. D1498
• Court: Florida District Court of Appeals

Page 658

580 So.2d 658

Gabriel CRISTANCHO, Maria Cristancho, Santo Mazzei, Maria

Mazzei, individually and on behalf of all those

similarly situated, Appellants, v. VILLAGE HOMES IN BONAVENTURE HOMEOWNERS ASSOCIATION, INC.,

a Florida corporation not-for-profit, Gale Venture Corp., a

Florida corporation, Bon West Inc., a Florida corporation

d/b/a Village Homes in Bonaventure, a Florida joint

venture, Robert J. Gale, Henry E. Marks, Eric D. Isenbergh,

Arnold H. Gottfried, Stan Fried, Shirley Reeves, Ron

Grossman, and Joe Heffernan, jointly and severally, Appellees.

No. 90-1837.

580 So.2d 658, 16 Fla. L. Week. D1498

District Court of Appeal of Florida,

Fourth District.

June 5, 1991.

Jules E. Mazzarantani of Wurtenberger & Schottenfeld, P.A., Plantation, for appellants.

Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellees--Village Homes in Bonaventure, Homeowners Ass'n, Inc., Robert J. Gale, Henry E. Marks, Eric D. Isenbergh, Arnold H. Gottfried, Stan Fried, Shirley Reeves, Ron Grossman, and Joe Heffernan.

PER CURIAM.

We reverse the order dismissing this case under rule 1.420(e) for failure to prosecute. We conclude that plaintiffs' notice of deposition and request to produce, filed six days before the lapse of one year, precluded such a dismissal because these discovery requests constitute "activity by filing of pleadings * * * or otherwise" within the meaning of rule 1.420(e).

REVERSED.

ANSTEAD and WARNER, JJ., concur.

FARMER, J., concurs specially with opinion.

FARMER, Judge, specially concurring.

I agree that a notice of deposition and a request to produce technically constitute the kind of activity contemplated by rule 1.420(e). I also agree that it is enough to serve such requests the day before the year has elapsed and thereby avoid a dismissal for failure to prosecute.

Here, plaintiffs' last real activity before the year was the filing of a fourth amended complaint on April 7, 1989. One defendant moved to dismiss it on April 27, 1989; and the other on May 10th, from which the year began to run. Plaintiffs then did nothing until May 4, 1990 when they filed a notice of deposition and a request to produce. The trial court noted, however, that there was no discovery initiated between December 1985 and May 4, 1990. He also noted that plaintiffs filed nothing before the hearing establishing good cause; nor did they offer any evidence at the hearing; nor is there any non-record...