Barton-Malow Co. v. Gorman Co. of Ocala, Inc.Barton-Malow Co. v. Gorman Co. of Ocala, Inc.
GOSHORN, Judge.
Barton-Malow Company, the general contrаctor, and Aetna Casualty and Surety Company, the surety on the labor and materials payment bond, appeal a final judgment in favor of Gorman Company of Ocala, Inc., the plumbing materials supрlier, in Gorman‘s suit on the bond. Appellants argue, inter alia, that the trial court erred in denying their motion to dismiss the action based on Gorman‘s failure to prosecute the case. Because we find this issue is dispositive of the appeal and requires reversal, we do not address the other issues raised by appellants.
Barton-Malow entered into a subcontract with Larry E. Ballard Plumbing Company
It was undisputed that there was no record аctivity in the action for a period in excess of one year.
(e) Failure to Prosecute. All аctions in which it appears on the face of the record that no activity by filing of pleadings, оrder of court or otherwise has occurred for a period of one year shall be dismissed by thе court on its own motion ... unless ... a party shows good cause in writing at least five days before the heаring on the motion why the action should remain pending... .
Appellants have the burden to show the court abused its discretion in finding good cause. Adams Engineering Company v. Constructions Products Corp., 156 So.2d 497 (Fla. 1963). Good cause requires some contact with the oppоsing party and some form of excusable conduct or occurrence which arose othеr than through negligence or inattention to pleading deadlines. F.M.C. Corporation v. Chatman, 368 So.2d 1307 (Fla. 4th DCA), cert. denied, 379 So.2d 203 (Fla. 1979). While Gorman did maintain contact with аppellants, as evidenced by two documented telephone calls regarding whether appellants’ offer of settlement remained open, Gorman‘s failure to prosecute did not stеm from any form of excusable conduct or occurrence.
Gorman alleged in its memorandum in оpposition to appellants’ motion to dismiss that it “totally relied” upon the suggestion of bankruptcy filed by Ballard as being a complete bar to any further action in its suit against appellants.1 Howеver, a petition for bankruptcy operates as a stay of the commencement of а judicial proceeding against the debtor or the employment of process,
Gorman argues that its misunderstanding of the effect of the bankruptcy petition was good cause sufficient to preclude dismissal for failure to prosecute. This argument is without merit. Gorman‘s counsel contends he had a right to rely on a suggestion of bankruptcy filed by what would have been opposing counsel. Gorman‘s attorney did nothing to determine the effect of the stay on Gorman‘s case against appellаnts. The notice filed by Ballard‘s attorney merely suggested to the trial court that the above-styled matter was automatically stayed and sought an order staying the proceeding pending disposition of the bankruptcy proceedings. No order staying the cause was ever entered. Gorman‘s counsel was not entitled to rely on a pleading and legal conclusion reached by counsel for whаt would have been an opposing party. Rather, Gorman‘s counsel himself should have determined thе legal effect of the stay on Gorman‘s case against appellants. Cf. Chandler v. Florida Farm Bureau Mutual Insurance Company, 546 So.2d 1179 (Fla. 4th DCA), review dismissed, 553 So.2d 1165 (Fla. 1989) (counsel was entitled to rely on information provided by the court clerk in the execution of his
Gorman failed to establish good cause for failing to timely prosecute the case. The trial court erred in not dismissing the case on that basis.
REVERSED.
COWART, J., concurs.
DAUKSCH, J., concurs specially in conclusion only.