Parker v. Gordon, 82-1577

• Citation: 442 So.2d 273
• Decision Date: 23 November 1983
• Docket Number: No. 82-1577,82-1577
• Parties: Audrey Oliver PARKER, Appellant, v. William K. GORDON, Martin F. Avery, Jr., O. Edgar Williams, Jr., Robert C. Scott and Berryhill, Avery, Williams & Scott, P.A., Appellees.
• Court: Florida District Court of Appeals

Page 273

442 So.2d 273

Audrey Oliver PARKER, Appellant, v. William K. GORDON, Martin F. Avery, Jr., O. Edgar Williams,

Jr., Robert C. Scott and Berryhill, Avery,

Williams & Scott, P.A., Appellees.

No. 82-1577.

District Court of Appeal of Florida,

Fourth District.

Nov. 23, 1983.

Rehearing Denied Jan. 17, 1984.

Oliver Addison Parker, Fort Lauderdale, for appellant.

Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellees.

PER CURIAM.

This cause is per curiam affirmed.

We are cognizant of the fact that the trial court erred in dismissing this suit on the ground that there had been a full year of inactivity. In the first place, Rule 1.090(a), Florida Rules of Civil Procedure, clearly states, "In computing any period of time prescribed or allowed by these rules ... the day of the act ... from which the designated period of time begins to run shall not be included." This rule applies in calculating time for purposes of Rule 1.420(e), and the appellate decisions reveal that record activity even on the 365th day of the succeeding year will suffice to defeat a motion to dismiss for failure to prosecute. See, e.g., Johnson v. Mortgage Investors of Washington, 410 So.2d 541 (Fla. 2d DCA 1982). In the instant case the original complaint was filed on January 12, 1981, and the amended complaint, on January 12, 1982. The latter was the last day of the year, and filing of the amended complaint constitutes record activity. Mueller v. North Broward Hospital District, 403 So.2d 581 (Fla. 4th DCA 1981). Furthermore, according to Florida East Coast Railway v. Russell, 398 So.2d 949 (Fla. 4th DCA 1981), "The one year period prescribed by Rule 1.420(e) is to be measured by calculating the time between the date of the last record activity and the date of the filing of the motion to dismiss." Id. at 951. Accord Rivera v. A.M.I.F., Inc., 417 So.2d 304 (Fla. 3d DCA 1982). Since in the instant case only twenty-two days elapsed between the filing of appellant's amended complaint and appellees' motion for dismissal, it is clear the court was in error.

However, "[e]ven when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it." Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980). We have applied this "right for the wrong reason" test, as restated in International Insurance Co. v. Ballon, 403 So.2d 1071, 1076 (Fla. 4th DCA 1981), in the case at bar and conclude no cause of action was stated in the filed complaint.

Appellant's amended complaint is most explicit as to the facts it alleges but exceedingly obscure as to the causes of action it purports to state. Count I pertains to the appellee law firm's legal representation of appellant in connection with a real property transaction. Appellant is a real estate broker who owned land jointly with four other persons. All five co-owners contracted to sell the property, but terminated the agreement because the contract purchasers were unable to obtain the necessary financing and the co-owners would not accept an additional person the purchasers sought to bring in in order to obtain the necessary financing. One of the law firm's associates, William K. Gordon, was retained by all five co-owners to defend against the contract purchasers' suit for specific performance and/or damages in excess of $1 million. Gordon recommended a settlement but when all of the co-owners, except the appellant, agreed to settle, Gordon withdrew from representing the latter but continued the representation of the other four. Gordon allegedly coerced appellant into giving up and agreeing with the other four to settle. If Count I intends to charge ethical misconduct for doing so, it is before the wrong forum. If on the other hand it refers to legal malpractice--in which case the complaint is defective because negligence is not alleged--then on the face of the pleading the two year limitation period of Section 95.11(4)(a), Florida Statutes (1981), applies and the statute has run.

Finally, if Count I was intended to allege a breach of fiduciary duty, it would be necessary to state with particularity the facts which purportedly created the duty that was breached, so that the court could determine as a matter of law whether there was such a duty. See 61A Am.Jur.2d Pleading § 18. As presented, the complaint merely makes the conclusory statement that a fiduciary duty...