Duggar v. Quality Development Corp.

• Court: Florida District Court of Appeals
• Writing for the Court: BOARDMAN
• Citation: Duggar v. Quality Development Corp., 350 So.2d 816 (Fla. App. 1977)
• Decision Date: 12 October 1977
• Docket Number: No. 77-884,77-884
• Parties: Rolfe D. DUGGAR, Appellant, v. QUALITY DEVELOPMENT CORPORATION of Florida, Quality Management Corp., Hilborn, Werner, Carter & Associates, Inc., Richard Joseph Werner, and Marilyn Pines Unit I Association, and Marilyn Pines Unit II, Appellees.

Page 816

350 So.2d 816

Rolfe D. DUGGAR, Appellant, v. QUALITY DEVELOPMENT CORPORATION of Florida, Quality Management Corp., Hilborn, Werner, Carter & Associates, Inc., Richard Joseph Werner, and Marilyn Pines Unit I Association, and Marilyn Pines Unit II, Appellees.

No. 77-884.

District Court of Appeal of Florida, Second District.

Oct. 12, 1977.

Rehearing Denied Nov. 7, 1977.

James W. Hagan of Fowler, White, Gillen, Boggs, Villareal & Banker, Clearwater, for appellant.

John S. Wagstaff of Phillips, McFarland, Gould, Wilhelm & Wagstaff, Clearwater, for appellees Quality Development Corp. of Florida and Quality Management Corp.

James D. Henry, St. Petersburg, for appellees Hilborn, Werner, Carter & Associates, Inc. and Richard Joseph Werner.

BOARDMAN, Chief Judge.

This is an interlocutory appeal of an order of the trial court denying a motion to dismiss for lack of prosecution filed by appellant, Rolfe D. Duggar (Duggar), under Fla.R.Civ.P. 1.420(e). We reverse.

In December 1974 suit was brought against appellee, Quality Development Corporation of Florida (Quality), by a condominium association, and as to those parties the action was settled by stipulation in December 1975. On October 29, 1975 Quality filed a third-party complaint against appellant and on October 30 a third-party complaint against appellee, Hilborn, Werner, Carter & Associates, Inc. (Hilborn). Various other counterclaims and cross-claims were filed by these parties. They included a cross-claim by Hilborn against Duggar and a counterclaim by Duggar against Hilborn. The last record activity among these parties was on March 10, 1976 when Quality filed a response to Duggar's affirmative defenses. More than one year later, on March 15, 1977, Duggar filed a motion to dismiss. Quality, within a short time thereafter, filed a response to the motion and a motion to set the case for trial. Hilborn failed to file either a response or a motion in opposition to appellant's motion.

Appellees argue that allegations set out in Quality's response to the motion to dismiss, that is that the attorney for Quality attempted to contact counsel for appellant by mail and telephone from time to time during the one-year period to ascertain from him the time necessary to set for trial, are sufficient to sustain the trial court's ruling. Additionally, it is asserted that Quality's attorney had prepared a motion to set the case for trial and left the time and date blank, although he did not mail or serve it upon appellant or file it in court until the motion to dismiss was filed. We think it pertinent to mention that when the motion to set the case for trial was filed the time estimated for trial was one-half a day.

Appellant contends the trial court erred and urges reversal of the court's ruling on two alternative grounds. First, Fla.R.Civ.P. 1.420(e) as amended by the supreme court effective January 1, 1977 mandates dismissal because there was no record activity within a one-year period. We do not agree. The amended rule which requires that the activity appear on the face of the record to prevent dismissal is not applicable to cases involving nonrecord activity prior to the...