Moossun v. Orlando Regional Health Care

• Decision Date: 20 June 2002
• Docket Number: No. SC00-1472.,SC00-1472.
• Citation: 826 So.2d 945
• Parties: DR. M. Hassen MOOSSUN, Petitioner, v. ORLANDO REGIONAL HEALTH CARE, et al., Respondents.
• Court: Florida Supreme Court

826 So.2d 945

DR. M. Hassen MOOSSUN, Petitioner, v. ORLANDO REGIONAL HEALTH CARE, et al., Respondents.

No. SC00-1472.

Supreme Court of Florida.

June 20, 2002.

Rehearing Denied September 11, 2002.

Zahid H. Chaudhry, Tallahassee, FL, for Petitioner.

Richard L. Allen, and Brian L. Wagner of Mateer & Harbert, P.A., Francis E. Pierce, III and David B. Falstad of Gurney & Handley, P.A., and Thomas E. Dukes and Ruth Osborne of McEwan, Martinez, Luff, Dukes & Ruffier, Orlando, FL, for Respondents.

PER CURIAM.

We have for review Moossun v. Orlando Regional Health Care, 760 So.2d 193 (Fla. 5th DCA 2000), based on conflict with the decisions in Charyulu v. Mercy Hospital, Inc., 703 So.2d 1155 (Fla. 3d DCA 1997), Brown v. Meyers, 702 So.2d 646 (Fla. 4th DCA 1997), and Samuels v. Palm Beach Motor Cars Limited by Simpson, Inc., 618 So.2d 310 (Fla. 4th DCA 1993), on the issue of whether a trial court's order setting a case management conference constitutes sufficient "record activity" to preclude dismissal for failure to prosecute under Florida Rule of Civil Procedure 1.420(e) even though there has been no other record activity by the litigants in the case. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set out below, we hold that the order setting a case management conference in this case does not constitute sufficient record activity to preclude dismissal under rule 1.420(e).

PROCEEDINGS TO DATE

The relevant proceedings to date are set out in the opinion below:

The suit below arose out of the death of twenty-year-old Ameena Moossun ["Ameena"], who died from pneumonia at Sand Lake Hospital in 1994. Ameena had fallen ill while on vacation with her mother in Orlando and the record suggests that her condition was misdiagnosed. Suit was filed by Ameena's father, Dr. M. Hassen Moossun ["Dr. Moossun"], acting as personal representative of Ameena's estate.

The case languished following the filing of the amended complaint on November 3, 1997, perhaps because shortly after the filing, plaintiffs out-of-town counsel filed a motion to withdraw. The last filing by a party appears to be a request to produce filed by Orlando Regional Healthcare System ["ORHC"] on January 27, 1998.

In the year following the filing of ORHC's request to produce, only two documents appear to have been filed in this action. On February 18, 1998, the court issued an order substituting new counsel to represent Dr. Moossun. Then, on January 26, 1999, the trial court issued an "Order Setting Case Management Conference."

Moossun, 760 So.2d at 193-94 (footnote omitted). The order directed the parties to submit a written status report and set a case management hearing to be attended by all parties on March 19, 1999. See id. at 194.¹ Two days later, on January 28, 1999, the defendants moved to dismiss the action for lack of prosecution, asserting that "[t]he last recorded activity in this case was the Request to Produce served in this action by Defendant, Orlando Regional Health Care System d/b/a Sand Lake Hospital, which was served on January 27, 1998." Id. On March 15, 1999, counsel for Dr. Moossun filed his status report on behalf of Ameena's estate, listing nonrecord activity that occurred in the case between February 18, 1998, and January 28, 1999. See id. at 195.² The trial court subsequently held a hearing, and thereafter entered an order dismissing the case for lack of prosecution on March 24, 1999. See id. According to the district court,

The order reviewed the activity set forth in counsel's letter of March 15, 1999, and concluded that none of the activity constituted "record activity" sufficient to preclude dismissal of the action. The court further concluded that the case management order entered by the court was insufficient to establish record activity. The court explained that "[t]he Case Management Order entered was only designed to determine the status of the case and to clear the court's docket of cases that have been concluded or abandoned."

Id. On appeal to the Fifth District Court of Appeal, Dr. Moossun argued that the trial court's order setting a case management conference constituted sufficient "record activity" to preclude dismissal for failure to prosecute. See id. In rejecting that argument and affirming the circuit court's decision, the district court relied on this Court's ruling in Toney v. Freeman, 600 So.2d 1099 (Fla.1992), wherein we held that a trial court's status order and a response to that order did not constitute sufficient "record activity" to preclude dismissal under rule 1.420(e). See Moossun, 760 So.2d at 196. In its opinion the district court acknowledged several district court decisions apparently to the contrary, Charyulu v. Mercy Hospital, Inc., 703 So.2d 1155 (Fla. 3d DCA 1997); Brown v. Meyers, 702 So.2d 646 (Fla. 4th DCA 1997); and Samuels v. Palm Beach Motor Cars Limited by Simpson, Inc., 618 So.2d 310 (Fla. 4th DCA 1993). See Moossun, 760 So.2d at 196-97.

ANALYSIS

Dr. Moossun asserts that an order setting a case management conference requiring a written report and attendance of the parties at a case management conference is designed to hasten the suit to judgment, and therefore constitutes "record activity" sufficient to preclude dismissal for failure to prosecute. For this reason, he argues, the district court's decision should not have relied on the principles announced in Toney in affirming the trial court's order of dismissal.

Rule 1.420(e), of the Florida Rules of Civil Procedure is entitled "Failure to Prosecute" and 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 1 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 writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e). This rule is intended to ensure that actions filed in Florida's courts are diligently prosecuted by the parties. The rule provides for dismissal without prejudice of actions wherein no record activity has taken place for a year.³

This Court construed rule 1.420(e) in Toney as it pertained to a court-ordered status request which required written responses detailing the status of an action. After responses were submitted and a hearing, the trial court dismissed the action due to lack of prosecution. On appeal, the district court reversed the dismissal, holding the status order and responses constituted record activity for purposes of rule 1.420(e). See Toney, 600 So.2d at 1100. Upon review, this Court held that the status request and responses did not constitute record activity under rule 1.420(e).

In our opinion in Toney, we explained that "not every action taken in a case is sufficient to prevent dismissal under the rule." Id. Under the rule "[r]ecord activity must be more than a mere passive effort to keep the case on the docket; the activity must constitute an affirmative act calculated to hasten the suit to judgment." Id. Relying on two district court decisions which had held that a trial court's status request did not preclude dismissal,⁴ we concluded that such court activity is not the type of activity contemplated by the rule to preclude dismissal in the face of an otherwise dormant record:

We find the opinions in Norflor Construction and Caldwell to be consistent with the principle that record activity must advance a case toward resolution. As Judge Downey noted in his dissenting opinion below, "[i]n a stretch of the imagination ... most any activity demonstrates there is life in the case and nudges it along. However, the ideal is to do something affirmative, something of substance." 591 So.2d at 202 (Downey, J., dissenting). Not every paper placed in the court file may be considered as record activity.

We also find this reasoning to be consistent with the spirit and purpose of the rule. Trial judges should be encouraged to take an active role in keeping themselves informed of the cases assigned to them. We refuse to construe appropriate case management activities in such a way as to give the parties leave to ignore the case for another year before dismissal is possible. Such a construction would thwart the purpose of case management and the purpose of the rule itself-to encourage prompt and efficient prosecution of cases and to clear court dockets of cases that have essentially been abandoned.

We reject Freeman's argument that the specific status order and response in this case constituted record activity because the order asked counsel to respond to questions designed to advance the case toward resolution and because Orkin's response, indicating the plaintiff had died, further advanced the case. The status order was designed to obtain information about the progress of the case; it did not move the case forward in the sense of a progression toward resolution. Although Orkin's response did mention that the plaintiff died, this response did not in and of itself advance the case in any way, but merely attempted to explain the delay in prosecution.

Toney, 600 So.2d at 1100-01 (emphasis added) (footnotes omitted). Hence, in Toney, we rejected an argument almost identical to that asserted here.

The petitioner attempts to distinguish Toney and asserts that the primary issue in Toney was whether a status request was "record activity," whereas, here, the issue is whether a status conference constitutes record activity. He further asserts that although this Court in Toney mentioned "case management activities," we did not...