Del Duca v. Anthony
| Decision Date | 24 October 1991 |
| Docket Number | No. 75756,75756 |
| Citation | 587 So.2d 1306 |
| Court | Florida Supreme Court |
| Parties | 16 Fla. L. Weekly S695 Michael DEL DUCA, et al., Petitioners, v. Paul E. ANTHONY, etc., Respondent. |
John W. MacKay, Tampa, Florida; and Robert E. Doyle, Jr. of Asbell, Hains, Doyle & Pickworth, P.A., Naples, for petitioners.
Robert Alan Rosenblatt of the Law Offices of Robert Alan Rosenblatt, P.A., Miami, for respondent.
Petitioners seek review of Anthony v. Schmitt, 557 So.2d 656 (Fla.2d DCA 1990), in which the district court held that the trial court erroneously dismissed the cause for lack of prosecution because discovery, timely filed by the plaintiff, was not in bad faith and would move the case forward. We find, as acknowledged by the district court, that there is conflict among the districts with regard to the test to be applied in determining when and under what circumstances a cause may be dismissed for a lack of prosecution when discovery has been sought within the one-year period. Conflict exists with Karcher v. F.W. Schinz & Associates, 487 So.2d 389 (Fla. 1st DCA 1986), and Philips v. Marshall Berwick Chevrolet, Inc., 467 So.2d 1068 (Fla. 4th DCA 1985). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. We approve the decision of the district court in this case.
The facts reflect that on June 22, 1979, Jacquelyn Anthony died in an automobile accident allegedly caused by Michael Del Duca. Del Duca's vehicle, which was titled in the name of Mr. Schmidt, collided with the vehicle driven by Mrs. Anthony. A wrongful death action was filed in 1979 by Mrs. Anthony's husband, Paul E. Anthony, who filed as personal representative of the estate and as guardian of their eight-year-old daughter. This action was subsequently delayed by the issue of the ownership of the car Del Duca was driving and by Del Duca's criminal prosecution for driving while under the influence of alcohol and manslaughter. After two trials, Del Duca was ultimately convicted of reckless driving.
This civil cause was set for trial twice: first in October, 1984, and then in March, 1986. Continuances were granted in one instance to accommodate plaintiff's counsel and in another to accommodate defense counsel. A third continuance was also granted to permit the trial judge to recuse himself. Additional relevant facts were articulated in the district court's opinion as follows 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....
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.
Anthony, 557 So.2d at 658 (citation omitted).
Del Duca moved to dismiss the action for failure to prosecute, asserting that the discovery requests were not meaningful acts of prosecution, and, nevertheless, answered the discovery. On February 2, 1989, the trial court entered an order setting the case for a status conference on March 1, 1989, and Anthony's counsel filed a notice to set the case for trial. The status conference was conducted despite Anthony's counsel's failure to appear and the case was scheduled for June 12, 1989. The motion to dismiss for lack of prosecution was heard by the trial judge on March 21, 1989, at which time the trial judge determined that the discovery requests did not constitute sufficient activity to justify further prosecution of the wrongful death action. The trial court also determined, on its own motion and without notice to Anthony's counsel, that the action should be dismissed because of counsel's failure to attend the status conference. The order of dismissal was entered on both grounds.
The district court of appeal reversed, holding that the discovery was sufficient activity and concluding that
a trial court may dismiss an action if the only activity within the relevant year is discovery activity by the plaintiff taken in bad faith merely as a means to avoid the application of rule 1.420(e) and without any design "to move the case forward toward a conclusion on the merits or to hasten the suit to judgment."
Id. at 662. The district court also reversed the dismissal for failure of counsel's appearance, concluding that "[t]he trial court's order does not contain findings of any wilful or flagrant or persistent disobedience by trial counsel, nor does the record support such findings." Id.
This cause presents the question of the proper test for trial courts to apply when considering a dismissal for failure to prosecute when some discovery activity has occurred during the last year. The question requires an interpretation of Florida Rule of Civil Procedure 1.420(e), which reads as follows:
(e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in...
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Wilson v. Salamon
...within the five-day time requirement that one of the three bases that would preclude dismissal exists. The factors from Del Duca [v. Anthony, 587 So.2d 1306 (Fla.1991)], whether any activity was done in good faith and whether the activity was with any design to move the case forward, are co......
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Kozel v. Ostendorf
...Ramos v. Sanchez, 375 So.2d 51 (Fla. 2d DCA 1979); Anthony v. Schmitt, 557 So.2d 656 (Fla. 2d DCA 1990), approved, Del Duca v. Anthony, 587 So.2d 1306 (Fla.1991); Wilson v. Woodward, 602 So.2d 547 (Fla. 2d DCA 1992). Sanctions should be calmly measured and objectively imposed. When a claim ......
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NEI v. Foodtech Hialeah, Inc.
...of prosecution was conducted. The trial court granted this motion and this appeal followed. On this appeal, NEI cites to Del Duca v. Anthony, 587 So.2d 1306 (Fla.1991) and asserts that the filing of its two notices of hearing, within one year preceding the appellee's motion to dismiss for l......
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Sheen v. The Time Inc. Magazine Co., 3D00-3510.
...constitute sufficient record activity.2 See Anthony v. Schmitt, 557 So.2d 656, 659 (Fla. 2d DCA 1990), approved by, Del Duca v. Anthony, 587 So.2d 1306, 1309 (Fla.1991). In Del Duca v. Anthony, the Florida Supreme Court approved the Second District Court of Appeal's decision in Anthony v. S......
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The misinterpretation of the dismissal for failure to prosecute rule.
...inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute. In Del Duca v. Anthony, 587 So. 2d 1306, 1308-9 (Fla. 1991), the Florida Supreme Court explained that application of Rule 1.420(e) is a two-step First, the defendant is required t......