Freeman v. Toney 591 So. 2d 200

PER CURIAM.

We reverse. Before the trial court filed the motion and notice of hearing regarding involuntary dismissal, it entered an order directing counsel to advise it of the status of the case. Defendant Orkin responded. We hold that the trial court’s order and Orkin’s response constitutes record activity sufficient to prevent involuntary dismissal. In so holding, we align ourselves with Miami Beach Awning Co. v. Heart of the City, Inc., 565 So.2d 739, 739 (Fla. 3d DCA 1990), in which the court stated that the trial court’s order setting the action for status conference was “reasonably calculated to advance the cause toward resolution.” Contra Caldwell v. Mantei, 544 So.2d 252 (Fla. 2d DCA 1989); Norflor Construction Corp. v. City of Gainesville, 512 So.2d 266 (Fla. 1st DCA 1987). The order dismissing the cause for lack of prosecution is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

GARRETT, J., and WALDEN, JAMES H., (Retired), Associate Judge concur.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting:

This case involves an appeal from an order dismissing appellant’s action for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e).

Appellants, Nebuchadnezzar Freeman and his wife, sued appellees, Keith Toney, and Orkin, his employer, for damages resulting from an automobile accident. On November 3, 1988, Orkin filed an answer and affirmative defenses. On February 9, 1990, the trial court filed an order directing counsel to advise the court of the status of the case within fifteen days. On March 6, 1990, the trial court filed a Motion and Notice of Hearing RE: Involuntary Dismissal, noting no record activity within one year and directing good cause to be shown on May 7, 1990, why the action should not be dismissed. Prior to the hearing Freeman filed a motion to substitute counsel, a notice of appearance, and a response with affidavits opposing the motion to dismiss for lack of prosecution. The trial court heard the matter and entered the order appealed from dismissing the cause.

Two appellate questions are presented: 1) whether the trial court’s order of February 9, 1990, directing counsel to advise it of the status of the case, constitutes sufficient record activity to toll the running of the one-year time period provided in Rule 1.420(e) and 2) whether Freeman showed good cause to preclude dismissal for lack of prosecution.

Florida Rule of Appellate Procedure 1.420(e) provides that 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 the motion of any interested person after reasonable notice to the parties unless the action is stayed or a party shows good cause why the action should remain pending. The record activity required by this rule has been interpreted to mean activity which is more that a mere passive effort and is an affirmative act directed toward disposition of the case. Norflor Construction Corporation v. City of Gainesville, 512 So.2d 266 (Fla. 1st DCA 1987). As a consequence, just any activity of record is not sufficient to carry the day. The Norflor case chronicles various types of activity which are ineffective in this context, such as filing a stipulation for substitution of counsel, a motion and order reflecting a change of name of a party, and others. The court concluded in that case that neither the court order requiring counsel to advise the court of the status of the case, nor a response to the order and notice of counsel’s change of address constituted sufficient record activity to prevent operation of the rule and dismissal for failure to prosecute. To like effect, in the same district is Nelson v. Stonewall Insurance *202Company, 440 So.2d 664 (Fla. 1st DCA 1983). Following Norflor, the second district, in Caldwell v. Mantei, 544 So.2d 252, 254 (Fla. 2d DCA 1989), held that “status requests and reports, albeit record activity, were not sufficient to avoid dismissal since they did not move the case forward toward disposition.”

As pointed out by the majority, the most recent case emanates from the third district in Miami Beach Awning Co. v. Heart of the City Inc., 565 So.2d 739, 739 (Fla. 3d DCA 1990), wherein that court concluded that “[t]he court’s order setting the cause for a status conference was, almost by definition, reasonably calculated to advance the cause toward resolution.”

I believe the conclusion reached in the first and second district courts of appeal cases is more realistic and practical and more nearly comports with the purpose of the rule. In a stretch of the imagination, I suppose 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. I would also note that most of the cases relied upon by Miami Awning, and the authorities cited in those cases, involved recognized affirmative record activity, not status reports as are involved in Miami Awning and the present case.

With regard to Freeman’s contention that good cause was shown for not dismissing the cause, I would disagree. The cases abound that hold that good cause requires some contact with the opposing party and some form of excusable conduct that arose other than through negligence or inattention to pleading deadlines. Barton-Malow Co. v. Gorman Co. of Ocala, Inc., 558 So.2d 519 (Fla. 5th DCA 1990); Togo’s Eatery of Florida, Inc. v. Frohlich, 526 So.2d 999 (Fla. 1st DCA 1988). The trial court’s determination here has not been shown to be an abuse of discretion.

Accordingly, I would affirm the order appealed from and align this court with the cases cited from the first and second district courts of appeal.

ON MOTION FOR REHEARING

PER CURIAM.

We deny appellee Orkin Exterminating Company, Inc.’s motion for rehearing, but substitute the following opinion to clarify our March 20, 1991 opinion:

Appellants Nebuchadnezzar and Helen Freeman seek review of the trial court’s final order that dismissed their cause of action for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). We reverse.

Between November 3, 1988 when appel-lee Orkin Exterminating Company, Inc. filed its answer and affirmative defenses and March 6, 1990 when the trial court filed its notice and motion to dismiss for lack of prosecution the following record activity occurred:

On June 22, 1989, appellants’ first attorney filed a notice of charging lien. On June 26, 1989, appellants’ second attorney filed a stipulation for substitution of counsel. On February 9, 1990, the trial judge entered an order that directed the parties to advise the court within fifteen days as to the status of the ease.1 The order directed the parties to answer the following questions:

1. Reason case has exceeded time standards:

2. If case has not been noticed for trial, what is the reason:

3. I expect discovery to be substantially completed by:

4. How many days will this case take to try:

Appellant did not respond, but on February 22, 1990, Orkin’s attorney filed a status report that answered the questions as follows:

1. The Plaintiff is deceased.

2. The Plaintiff is deceased.

3. Unknown.

*2034. 2½.

On March 6, 1990, the trial court gave the parties notice of its motion to dismiss for lack of prosecution and set May 7,1990 as the hearing date. Appellants’ third attorney filed a response and affidavits in opposition to the court’s motion. After the hearing, the trial court “involuntarily dismissed” the case and later denied appellants’ motion for rehearing. On August 7, 1990, appellants filed their notice of appeal.

Initially, we note that rule 1.420(e) includes the phrase “activity by filing of pleadings, order of court or otherwise.”

We need not address the notice of charging lien nor the stipulation for substitution of counsel because appellants have never contended that those events constituted record activity sufficient to toll the one year period of the rule. However, appellants do contend that either the trial judge’s status order or Orkin’s response tolled the time and prevented an involuntary dismissal.

We agree with appellants and hold that the trial court’s status order and Orkin’s response constituted sufficient record activity to prevent a dismissal of the case. The status order asked counsel to respond to questions designed to advance the case toward resolution. In its response, Orkin indicated that the plaintiff (Mr. Freeman) had died which further advanced the case toward resolution. Orkin’s response could be considered the equivalent of the “statement of the fact of death” contemplated by Florida Rule of Civil Procedure 1.260. That rule provides that the deceased plaintiff’s action shall be dismissed unless a motion for substitution of the proper party is made within 90 days after a suggestion of death appears in the record. More than five months passed from Orkin’s response to the notice of appeal, but no one filed a motion for substitution. It appears that a dismissal brought about by the trial court’s status order will resolve the deceased plaintiff’s action. Also, we surmise that the dismissal of Mr. Freeman’s action will most likely advance Mrs. Freeman’s loss of consortium and services action toward resolution.

We distinguish Caldwell v. Mantel, 544 So.2d 252 (Fla. 2d DCA 1989) (trial court’s request for status reports and counsels’ responses, albeit record activity, not sufficient to avoid dismissal, since they did not move the case forward toward disposition) and Norflor Construction Corp. v. City of Gainesville, 512 So.2d 266 (Fla. 1st DCA 1987) (neither trial court’s case status request nor plaintiff’s response rose to level of affirmative action directed toward disposition of case). We agree that neither of those case status requests advanced the respective case toward resolution. In Caldwell the trial court’s order merely requested a “status report on the case” and both counsel filed letter responses that indicated:

[T]he parties were attempting to settle the case. * * * [I]f settlement offers could not be exchanged ... the case would [be] notice[d] for trial.

544 So.2d at 253. In Norflor the trial court’s order merely asked counsel “to advise of status of the case” and the plaintiffs filed a response that stated:

This is a complex construction dispute in which extensive discovery has been conducted and is anticipated in the future. Counsel anticipates filing a Notice of Trial in this action....

512 So.2d at 267.

We need not adopt or reject the holding in Miami Beach Awning Co. v. Heart of the City, Inc., 565 So.2d 739 (Fla. 3d DCA 1990), where the Third District stated that a trial court’s order “setting the cause for a status conference” in and of itself constituted record activity:

[T]he court’s order setting the cause for status conference was, almost by definition, reasonably calculated to advance the cause toward resolution. [Citations omitted.] Since that action, which thus constituted ‘record activity,’ occurred with a year prior to the appellees’ motion to dismiss, the order of dismissal cannot stand.

Id.

Accordingly, we reverse the trial court’s final order of dismissal and remand for *204further proceedings consistent with this opinion.

REVERSED AND REMANDED.

GARRETT, J., and WALDEN, Senior Judge, concur.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting, with opinion.

I remain convinced that an abuse of discretion has not been demonstrated and adhere to the views expressed in my dissent to the majority opinion filed March 20, 1991.