Grossman v. Segal
| Decision Date | 15 December 1972 |
| Docket Number | No. 72--1232,72--1232 |
| Citation | 270 So.2d 746 |
| Parties | Larry GROSSMAN, Appellant, v. George SEGAL and Joel Dennis, Appellees. |
| Court | Florida District Court of Appeals |
Levine, Helman & Reckson, Miami, for appellant.
Sparber, Zemel, Roskin & Heilbronner and Ben P. Kazer, Miami, for appellees.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
Defendant-appellant, Larry Grossman, brings this interlocutory appeal to review the lower court's order denying his motion to dismiss plaintiff-appellees', George Segal and Joel Dennis, complaint for lack of prosecution.
The complaint in this cause was filed by plaintiffs on June 30, 1967 and due to various delays, numerous substitution of attorneys and protracted discovery proceedings the case progressed very slowly. On August 21, 1972 appellant filed a motion to dismiss the complaint, pursuant to RCP 1.420(e), 30 F.S.A., upon the grounds that it affirmatively appeared from the file that no action had been taken by plaintiffs to prosecute the case for a period of one year prior to the motion. Following arguments by counsel, the trial judge denied the motion stating that this particular factual situation did not call for the enforcement of RCP 1.420(e).
When a motion to dismiss is made, a party is required to show either active prosecution within the preceding year or good cause for his failure to prosecute to avoid dismissal of his complaint. Chrysler Leasing Corp. v. Passacantilli, Fla.1972, 259 So.2d 1; Sroczyk v. Fritz, Fla.1969,220 So.2d 908; Fleming v. Florida Power Corp., Fla.App.1971, 254 So.2d 546; Adams Engineering Co. v. Construction Products Corp., Fla.App.1962, 141 So.2d 300, opinion quashed on other grounds, Fla., 156 So.2d 497, on remand, Fla.App., 158 So.2d 559; Schumaker v. Orange State Oil Co., Fla.App.1962, 141 So.2d 628. In the case sub judice defendant had engaged in delaying tactics and was not free from criticism. The trial judge properly exercised his discretion and denied the motion to avoid 'an unfair result' that would 'defeat the cause of justice'. We uphold the denial of defendant's motion based upon the good cause exhibited by plaintiffs which excused their failure to prosecute.
All other issues raised by defendant are not sufficient to warrant a reversal. However, we must mention and dispose of the argument raised by defendant that the illness of plaintiffs' counsel was responsible for the denial of the motion to dismiss....
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Miami Nat. Bank v. Greenfield, 84-2687
...(a compelling reason, such as estoppel, may be shown to avoid dismissal where there has been no record activity); Grossman v. Segal, 270 So.2d 746 (Fla. 3d DCA 1972) (where defendant engaged in delaying tactics a motion to dismiss was properly denied so as to avoid "an unfair result" that w......
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Carter v. DeCarion
...v. Passacantilli, 259 So.2d 1 (Fla.1972); Ace Delivery Service, Inc. v. Pickett, 274 So.2d 15 (Fla. 2d DCA 1973); Grossman v. Segal, 270 So.2d 746 (Fla. 3d DCA 1972), cert. denied, 274 So.2d 237 (Fla.1973). It is apparent that appellant's Notice of Taking Deposition, filed on the same day a......
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Barnes v. Ross, 79-1028
...unstated by the plaintiff. It has been said that a temporary illness will not satisfy the good cause requirement. See Grossman v. Segal, 270 So.2d 746 (Fla. 3d DCA 1972). The length of the temporary illness in Grossman is not stated. However, it is clear from the opinion that the unnamed af......
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Lenion v. Calohan
...Iolab Corp., 642 So.2d 818 (Fla. 3d DCA 1994). Counsel's falling ill on the 364th day does not constitute good cause. Grossman v. Segal, 270 So.2d 746 (Fla. 3d DCA 1972). But a solo practitioner's four-month physical disability in the wake of an automobile accident does, apparently even if ......