Florida East Coast Ry. Co. v. Russell, 79-870
| Citation | 398 So.2d 949 |
| Decision Date | 13 May 1981 |
| Docket Number | No. 79-870,79-870 |
| Parties | FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. Jack A. RUSSELL and Carmen Vallarta Russell, his wife, Appellees. |
| Court | Court of Appeal of Florida (US) |
Kenneth L. Ryskamp of Goodwin, Ryskamp, Welcher & Carrier, P. A., Miami, and Jones & Foster, P. A., Vero Beach, for appellant.
Edna L. Caruso, and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellees.
In this negligence action the appellant, Florida East Coast Railway, appeals a final judgment, entered upon a jury verdict, awarding damages to the appellees, Jack Russell and his wife. Although the appellant raises several points on appeal, only one of them merits discussion. The others were either waived by failure to object at the trial level or they are without merit.
The appellant contends that this action should have been dismissed for failure to prosecute pursuant to Fla.R.Civ.P. 1.420(e). We disagree and affirm.
Russell was seriously injured in December, 1973, when the truck he was driving was struck by one of appellant's trains at a private crossing on the property of his employer. His original complaint was voluntarily dismissed when his attorney, Al Frier, became ill at trial. The action was reinstituted in June, 1977 against the railway and its employee who operated the train. Although the names of attorneys C. R. McDonald and Al Frier appeared on the complaint, it was signed only by Frier, and McDonald disclaimed knowledge that his name was on the complaint. McDonald represented Russell on the latter's workmen's compensation claim and apparently referred the negligence suit to Frier. McDonald contended that Russell discharged him on September 7, 1977 from further representation. The appellant's answer to the complaint was served on McDonald and Frier on July 5, 1977.
No further action toward prosecuting the case ensued, and on August 11, 1978, the clerk of the trial court notified appellant's counsel and Frier by letter that the cause would be dismissed on September 12th unless good cause was shown prior to that date. The notice did not contain a hearing date, nor did it make reference to Rule 1.420(e). It is undisputed that no record activity had occurred between July 5, 1977 and August 11, 1978. During this period, Frier was experiencing difficulties coping with his duties as a lawyer and he failed to prosecute Russell's claim. These problems were not made known to Russell who was assured repeatedly by Frier and his wife-secretary that his claim was being prosecuted diligently.
When the clerk's letter of August 11th was discovered by Frier's wife, she notified McDonald of the circumstances. He immediately filed a motion to set the cause for jury trial and the court, on September 21, 1978, set the cause for trial. Nonetheless, on September 26, 1978, the appellant filed a motion to dismiss the action for failure to prosecute, alleging no record activity for more than one year after the filing of appellant's answer. The trial court denied the motion to dismiss on the ground that Frier's mental problems, which were unknown to Russell, constituted good cause for failing to prosecute. The case subsequently went to trial with new counsel representing the Russells.
In view of our holding, it is not necessary to determine whether Frier's mental problems constituted good cause for allowing the action to remain pending. We believe that the informal clerk's notice sent to the parties on August 11, 1978 was a nullity because it failed to comply with Fla.R.Civ.P. 1.420(e), which states:
(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...
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