Smith v. DeLoach, 89-00899
| Decision Date | 09 February 1990 |
| Docket Number | No. 89-00899,89-00899 |
| Parties | 15 Fla. L. Weekly D466 Clifton H. SMITH and Betty Jean Smith Tolman, Appellants, v. Guion T. DeLOACH, Appellee. |
| Court | Florida District Court of Appeals |
Dennis R. White of Dennis R. White, P.A., Naples, for appellants.
Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for appellee.
The appellants, Clifton H. Smith and Betty Jean Smith Tolman, challenge the order dismissing their complaint for failure to prosecute. We affirm. Although two depositions were taken during the year preceding the motion and copies of those depositions were improperly filed by the court reporter, no record activity was created by the parties during that year. The appellants' attempt to establish good cause in writing pursuant to Florida Rule of Civil Procedure 1.420(e) fell below the high standard previously set by this court. American E. Corp. v. Henry Blanton, Inc., 382 So.2d 863 (Fla. 2d DCA 1980).
On September 2, 1983, the appellants filed this action against the appellee, Guion T. DeLoach. The complaint alleged that Mr. DeLoach, an attorney, negligently drafted a will for Alden C. Smith. Mr. Smith is deceased. The appellants are the children of Mr. Smith and are beneficiaries under his will. Because of numerous alleged ambiguities in the will, a petition for construction of the will was filed in the probate proceeding in 1981. The appellants' complaint alleges that the probate proceeding is pending. The complaint also alleges that the appellants have and will suffer damages for attorneys' fees and costs in the probate proceeding. Although the complaint does not describe other damages in detail, the record suggests the appellants also contend that they will eventually receive a smaller than intended portion of the estate because of the ambiguous will.
The appellee answered the complaint, and the appellants responded with a motion to strike the appellee's affirmative defense. Nearly a year later, the appellants noticed their motion to strike for hearing. The court granted the motion to strike on December 11, 1984. On December 12, 1985, the appellee filed his first motion to dismiss for failure to prosecute. The appellants responded to the motion, and listed various reasons for their failure to prosecute the action. These reasons primarily related to activity in the probate proceeding and in a similar malpractice action filed by the personal representative of Mr. Smith's estate. At an unreported hearing on February 18, 1986, the trial court found these reasons to be good cause for the action to remain pending. 1 The probate proceedings were ultimately terminated on June 29, 1988.
In February 1986 and June 1987, the appellants filed motions to stay or abate this action pending the outcome of the probate proceeding. These motions, however, were never set for hearing. Likewise, the appellants noticed their case for trial in April 1987. The case was initially set for trial, but was removed from the docket by an order of reassignment, following the trial judge's notice of recusal.
On July 9, 1987, the appellee filed two notices of taking deposition. The notices scheduled the two appellants for deposition on August 14, 1987. Additionally, the appellee filed requests for each appellant to produce documents at their scheduled depositions. On August 14, 1987, the appellee took the appellants' depositions. The depositions were recorded by a court reporter employed by Collier Reporting Services. On August 24, 1987, the court reporter filed the original transcripts with the clerk of the circuit court in accordance with the reporting service's routine business practice. The court reporter served no notice of this filing.
On July 11, 1988, the appellee filed a second motion to dismiss for failure to prosecute. Apparently unaware of the depositions which the court reporter had filed, the appellee filed an additional set. In response to the motion to dismiss, the appellants argued that (1) the mandatory one year had not elapsed due to the taking or the filing of the depositions, and (2) if the depositions did not constitute record activity, then the appellants had good cause to permit the case to remain pending because of the depositions, because of the unresolved motions to stay or abate, and because the probate proceeding had not concluded until June 1988. The trial court rejected the appellants' arguments and granted the motion to dismiss without prejudice.
On appeal, the appellants argue that the appellee's taking and filing of their depositions created record activity under rule 1.420(e) within the year prior to the appellee's motion to dismiss and, therefore, the motion to dismiss was prematurely filed.
Florida Rule of Civil Procedure 1.420(e) states in relevant part:
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 ... 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 five days before the hearing on the motion why the action should remain pending.
We agree with the trial court that the taking of depositions is nonrecord activity. Further, the mere fact that a notice of deposition schedules the taking of a deposition for a future date does not assure that the deposition will be taken. It does not result in activity in the record on the future date. If rule 1.420(e) was interpreted, or amended, so that the scheduling of future discovery created record activity on the future compliance date, parties could frustrate the rule by setting depositions or other discovery at various times in the distant future. Our decision is consistent with dicta in Norflor Construction Corp. v. City of Gainesville, 512 So.2d 266 (Fla. 1st DCA 1987), review denied, 520 So.2d 585 (Fla.1988).
We also agree that the court reporter's filing of the depositions in this case was not record activity because the filing was not for any intended use by the parties or the witnesses. The depositions were filed in violation of Florida Rule of Civil Procedure 1.310(f)(3), which only permits the filing of depositions by a party or the witness and for an intended use by the court. Rule 1.310(f)(3) states in relevant part:
(3) A copy of a deposition may be filed only:
(A) By a party or the witness when the contents of the deposition must be...
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