Summary
In Bialy v. Stinson, 617 So.2d 349 (Fla. 4th DCA 1993), a recent two-to-one decision, the Fourth District concluded that appearance at a noticed hearing in open court is not "record activity" if the hearing is not transcribed.
Summary of this case from Talbert v. Moxley Const., Inc.Opinion
No. 91-2320.
April 14, 1993. Rehearing Denied May 24, 1993.
Appeal from the Circuit Court, Broward County, Robert C. Abel, J.
Edgar Miller, Miller and Russell, Coral Gables, for appellant.
Edna L. Caruso and Barbara J. Compiani, Edna L. Caruso, P.A., West Palm Beach, and S. Robert Zimmerman, Pompano Beach, for appellee.
Appellant contends the trial court erred when it dismissed her cause of action for lack of prosecution pursuant to rule 1.420(e), Florida Rules of Civil Procedure. We agree and reverse and remand.
On or about March 1, 1990, appellant filed a complaint seeking a determination of the estate's ownership interest in a certain stock certificate. Appellee moved to strike and/or dismiss the complaint. On May 13, 1991, the trial court sua sponte entered a motion, notice and judgment of dismissal in accordance with rule 1.420(e). Within the time allowed by the rule, appellant filed a response asserting as cause her change in counsel, the unresolved motion to strike and/or dismiss and a multiplicity of related lawsuits that required attention of her counsel. At a hearing on the order of dismissal, appellant presented affidavits of counsel which established her counsel attended a June 4, 1990 hearing on appellee's motion to dismiss.
The last record activity occurred on April 25, 1990 when appellant filed a re-notice of hearing on appellee's motion to strike and/or dismiss and scheduled the hearing for June 4, 1990. Therefore, no record activity occurred within one year before the date of the order of dismissal. We find merit, however, in appellant's argument that her counsel's attendance at a properly noticed hearing on a motion to strike and/or dismiss the complaint constitutes a showing of good cause and sufficient nonrecord activity to preclude the trial court's order of dismissal for lack of prosecution.
Accordingly, we reverse the order of dismissal and remand this cause for further proceedings.
REVERSED and REMANDED.
WARNER, J., concurs.
POLEN, J., concurs specially with opinion.
While I agree that the trial court erred in dismissing appellant's complaint for lack of prosecution, I am hard-pressed to embrace the notion that a duly noticed hearing, held in open court with both counsel present, is non-record activity. To be sure, we are not favored with a transcript of the June 4, 1990, hearing, nor are we advised if any court reporter was present. There was no clerk's docket entry to record the holding of the hearing, nor of any proposed disposition. However, it seems clear that a duly noticed hearing on a pending motion to dismiss and/or strike the complaint would be designed to move the litigation forward. Interestingly, the parties offer no case citations, nor have I been able to discover any, which address whether or not such a hearing is "record" activity. If this is a case of first impression, I would be inclined to hold that such hearing is record activity.
It would appear to be the custom in the 17th circuit, and perhaps elsewhere, not to have a deputy clerk attend a motion hearing unless specifically requested.