Moossun v. Orlando Regional Health Care, 5D99-1114.
Decision Date | 31 March 2000 |
Docket Number | No. 5D99-1114.,5D99-1114. |
Citation | 760 So.2d 193 |
Parties | Dr. M. Hassen MOOSSUN, etc., Appellant, v. ORLANDO REGIONAL HEALTH CARE, etc., et al., Appellees. |
Court | Florida District Court of Appeals |
Zahid H. Chaudhry, of Zahid H. Chaudhry, P.A., Tallahassee, for Appellant.
Richard L. Allen, Jr., of Mateer & Harbert, P.A., Orlando, for Appellees, Orlando Regional Health Care System and Philip J. Davis, M.D.
Francis E. Pierce, III, and David B. Falstad, of Gurney & Handley, P.A., Orlando, for Appellee, Richard P. Nathanson, M.D.
Thomas E. Dukes, III, and Ruth C. Osborne, of McEwan, Martinez, Luff, Dukes & Ruffier, P.A., Orlando, for Appellee, Richard J. Tejedor, M.D.
This is an appeal of a final order dismissing suit for failure to prosecute. We affirm.
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, plaintiff's 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, 1998.1
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." The order provided in relevant part as follows:
On January 28, 1999, the defendants moved to dismiss the action for lack of prosecution, asserting that "[t]he last record 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." Dr. Moossun filed his status report on behalf of Ameena's estate on March 15, 1999. The report detailed the following non-record activity as the activity which had taken place after February 18, 1998 and up until January 28, 1999, when the motions to dismiss were filed:
(emphasis in original). The estate's counsel also asserted that he had been lulled into a false sense of security by statements made by defendants' counsel that they would work with him towards a settlement and that he could take all of the time he needed. Finally, counsel for the estate noted that it had filed several discovery related requests (such as notice of service of first set of interrogatories to defendants) since the filing of the motions to dismiss for failure to prosecute but appellees did not respond.
The trial court held a hearing3 and entered an order dismissing the case for lack of prosecution on March 24, 1999. 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."
The key issue presented by this case is whether the "Order Setting Case Management Conference" which was issued by the trial court on January 26, 1998, constituted sufficient "record activity" within the meaning of Florida Rule of Civil Procedure 1.420(e) to preclude dismissal of the action.
In Toney v. Freeman, 600 So.2d 1099 (Fla.1992), the Supreme Court of Florida held that the trial court's issuance of a status order asking the parties to advise the court of certain information (including why the case had exceeded the regular time limits set for such cases) was not record activity within the meaning of the rule. The order issued by the trial judge in Toney stated:
Id. at 1099. Additionally, in Toney, one of the parties had filed a status report answering the court's questions. In holding that a trial court's status order and a response to that order did not constitute "record activity" sufficient to preclude dismissal, the supreme court cited with' approval the holdings in Caldwell v. Mantei, 544 So.2d 252 (Fla. 2d DCA 1989) and Norflor Construction Corporation v. City of Gainesville, 512 So.2d 266 (Fla. 1st DCA 1987), review denied, 520 So.2d 585 (Fla.1988).
Although Toney referred broadly to "case management activities," the Fourth District has distinguished the status orders involved in Toney. In Samuels v. Palm Beach Motor Cars Limited by Simpson, Inc., 618 So.2d 310 (Fla. 4th DCA), review denied, 629 So.2d 134 (Fla. 1993), the Fourth District held that the issuance of an order by the trial court setting a case for a status conference, coupled with attendance at the conference by one or both parties, was sufficient "record activity" to preclude dismissal of an action for lack of prosecution, because it was reasonably calculated to lead the case to resolution. The Samuels court explained that:
The Fourth District followed Samuels in Brown v. Meyers, 702 So.2d 646 (Fla. 4th DCA 1997), holding that the trial court...
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