Harris v. Winn-Dixie Stores, Inc., WINN-DIXIE

• Decision Date: 28 December 1979
• Docket Number: No. NN-425,WINN-DIXIE,NN-425
• Citation: 378 So.2d 90
• Parties: Helen C. HARRIS and Henry T. Harris, her husband, Appellants, v.STORES, INC., a Florida Corporation, Fidelity and Casualty Companyof New York, a Foreign Corporation, and P. J. Ritter Company, a ForeignCorporation, Appellees.
• Court: Florida District Court of Appeals

Page 90

378 So.2d 90

Helen C. HARRIS and Henry T. Harris, her husband, Appellants, v. WINN-DIXIE STORES, INC., a Florida Corporation, Fidelity and Casualty Companyof New York, a Foreign Corporation, and P. J. Ritter Company, a ForeignCorporation, Appellees.

No. NN-425.

District Court of Appeal of Florida, First District.

Dec. 28, 1979.

Vincent J. Rio, III and Jack W. Shaw, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellants.

Philip A. Webb, III and Douglass E. Myers, Jr., of Webb, Swain & Watson, Jacksonville, for appellees Winn-Dixie and Fidelity.

Edward L. Kelly, of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellee Ritter.

BEN C. WILLIS, Associate Judge.

The appellants, Harris husband and wife, plaintiffs in the trial court, sued in November 1974 for injuries sustained in October 1974 by the wife in the store of defendant, Winn-Dixie Stores, Inc. (hereafter referred to as Winn-Dixie) when a ketchup bottle fell from a shelf and injured her. In April 1975, pursuant to leave of court, the Complaint was amended to add as defendant, Fidelity and Casualty Insurance Company (hereafter referred to as Fidelity), which is the insurance carrier for Winn-Dixie, and also to add as defendant P. J. Ritter Company (hereafter referred to as Ritter). Ritter was alleged to have been negligent, as the manufacturer and packager of the ketchup, in the design, manufacture and inspection of the bottle involved. During 1975 there was considerable activity of record, including the filing of a Third Amended Complaint, to which Ritter filed an Answer in October. Winn-Dixie had filed an Answer in March to the original Complaint, but neither it nor Fidelity specifically answered the Third Amended Complaint until March 1978. In December 1975 the court granted defendants Motion to Compel Response, and Supplemental Answers to Interrogatories were filed by Ritter.

There was no activity of record for over ten months in 1976. During November and December of that year there was some discovery activity which extended into January and March 1977. From March 22, 1977 until February 1978, eleven months, there was a period of inactivity of record. In February, March and April 1978 there was further discovery activity, and on March 29, 1978 Winn-Dixie and Fidelity filed an Answer to the Third Amended Complaint. After April 4, 1978, when Winn-Dixie filed an Answer to a Supplemental Interrogatory, there was no activity of record for about ten months when plaintiffs filed, on February 8, 1979, a one-question interrogatory to defendants for an up-date to prior interrogatories. Ritter responded on the next day with a Motion to Dismiss for Lack of Prosecution. After Ritter's motion was filed but before hearing on the motion on March 7, 1979, there was filed Ritter's Answer to Supplemental Interrogatory, plaintiff's Motion to Set the Case for Trial, and Ritter's Answers to some interrogatories filed in February 1978. On the date of the hearing, Winn-Dixie filed Answer to the Supplemental Interrogatory and propounded interrogatories of its own to both plaintiffs.

The trial judge, on March 30, 1979, entered an Order of Dismissal in which the motion of Ritter to dismiss was granted and it was stated "this cause is dismissed for lack of prosecution." This is a final dismissal with prejudice as the statute of limitation has run.

The trial court based its ruling on the operation of Rule 1.420(e) Florida Rules of Civil Procedure and "the inherent judicial power of the Court." The court based its conclusion that whatever activity of record occurred within a one-year period prior to the filing of the motion of Ritter to dismiss such was not constructively related to a good faith prosecution of the case but were mere passive efforts to keep the lawsuit on the court's docket and were not genuine measures calculated to hasten the suit to judgment. Rule 1.420(e) provides:

(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 motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period less than one year shall not be sufficient cause for dismissal for failure to prosecute. " Emphasis supplied.

The last sentence of the rule, emphasized above, is in a 1976 amendment effective January 1, 1977. The committee note to this amendment states that the amendment is "to prevent the dismissal of an action for inactivity alone unless one year has elapsed since the occurrence of activity of record."

The appellants contend that the dismissal is improper as there was activity of record within the one-year period prior to the filing of Ritter's motion on February 9, 1979. The record filings within that period consist of Supplemental Interrogatories to Ritter, both filed February 28, 1978; Ritter's Notice of Taking Deposition and Request for Production, filed March 6, 1978; Answer of Winn-Dixie and Fidelity to Third Amended Complaint, filed March 30, 1978; Winn-Dixie's Response to Supplemental Interrogatory, filed April 5, 1978; and plaintiff's Supplemental Interrogatories to both defendants, both filed February 8, 1979.

No Motion to Dismiss was made by Winn-Dixie or Fidelity. However, it may be assumed that they adopted the position of Ritter and claimed a dismissal should apply to all defendants.

The trial court, in the Order of Dismissal, noted the inherent power of the court to dismiss for lack of prosecution with due diligence. However, the trial judge largely based his ruling on a conclusion that the activity of record during the one-year period preceding the Motion to Dismiss involved only steps in the prosecution which were mere passive efforts to keep the suit on the docket of the court and did not constitute genuine measures calculated to hasten the suit to judgment. The power to disregard action which is mere passive effort to keep the suit on the docket, and that such must be some active measure intended and calculated to hasten the suit to judgment was recognized in Gulf Appliance Distributors, Inc. v. Long, Fla.1951, 53 So.2d 706. This case was construing Section 49.19, Florida Statutes, 1949, which then prescribed the power to dismiss for want of prosecution when there had been no "action" by filing of pleadings, order of court or otherwise that the litigation "is being prosecuted," for a period of one year. The statute has been replaced by Rule 1.420(e) of the Florida Rules of Civil Procedure with some modifications, but with basically the same requirements.

The two-fold purpose of Rule 1.420(e) is stated by this court in Strader v. Morrill, Fla. 1st DCA 1978, 360 So.2d 1137 as follows:

"(1) To require prompt and efficient prosecution of the case up to the point of submission for disposition or determination by the judge or the jury.

(2) To prevent the clogging of dockets of the trial courts with litigation that has been, essentially, abandoned for the stated period."

The trial court, in reviewing the record actions within the one-year period concluded that the Supplemental Interrogatories filed by the plaintiff in February 1978 did little more than restate previously answered interrogatories; that the February 1979 Interrogatory merely asks if there are any changes in previous Interrogatories; that the deposition noticed in April 1978 was never taken; and that the Answer of Winn-Dixie and Fidelity to the Third Amended Complaint "is identical in every respect to the Answer to the Second Amended Complaint, and that the earlier Answer would have been allowed to stand over as a response to the Third Amended Complaint." (paragraph (e), page 2 of Order of Dismissal.) However, the trial court was mistaken in stating that there had been an Answer of Winn-Dixie to the Second Amended Complaint. The only previous Answer of Winn-Dixie had been filed in March 1975, prior to the filing of Amended Complaint in which Fidelity and Ritter were joined as parties. The Answer to the Third Amended Complaint, filed in March 1978, was the only Answer made by Fidelity to a Complaint.

The problem before this Court is whether or not the trial court abused its discretion in its conclusion that each of the several items of activity within one year prior to Ritter's motion, filed February 9, 1979, should be disregarded as being a mere passive effort to keep the suit on the docket and was not a genuine measure to hasten the suit to judgment. A ruling on a Motion for an Order of Dismissal is subject to attack only on the ground that it constitutes an abuse of discretion and "this heavy burden must be borne by the losing party . . . " Eli Einbinder, Inc. v. Miami Crystal Ice Co., Fla. 3rd DCA 1975, 317 So.2d 126; Popkin v. Crispen, Fla. 1st DCA 1968, 213 So.2d 445, cert. denied 222 So.2d 748. See also Reddish v. Forlines, Fla. 1st DCA 1968, 207 So.2d 703.

The trial court did not rely very heavily on the concept of the inherent power of the trial court to dismiss an action which is not being prosecuted with due diligence. It did allude to the long lapses, on three occasions, of record activity of any kind, and also that the case had been pending...