254 So. 2d 546 | Fla. Dist. Ct. App. | 1971
In case after case
But there must be a full year of dormancy, which there was not. The defendant filed its motion to dismiss on September 21, 1970. The last activity recorded on the docket was a notice of taking the deposition of one H. G. Wells, filed on September 12, 1969. The deposition was taken September 19, 1969. Filing was waived by consent of the parties, so the docket does not record it. But the deposition could not have been filed before October IS, 1969, the date of the reporter’s certificate.
In Whitney v.Whitney, Fla.App.1970, 241 So.2d 436, this court construed the words “or otherwise” to include activity which would appear of record but for the cooperation of counsel in pursuing the end of the case off the record. There the activity was related to the collection of financial data which could have been obtained through the discovery process, and which would have been shown of record had depositions been taken. Here the filing of the deposition would have occurred in due course no earlier than October 15, 1969, but for the waiver of counsel. In Whitney v.
What the rule contemplates is that the defendant, by examining the court docket and his own file, may determine when the cause has been dormant for a full year. What the footnoted cases indicate is that the plaintiff cannot thereafter come in and have the cause reinstated by showing how busy he has been. The restrictive interpretation decided against in Whitney would discourage plaintiffs from proceeding by consent of counsel for fear that the cause may be dismissed, and the law favors resolution of disputes outside of court so far as possible.
Incidentally, the headnote in Whitney is incomplete, and hence misleading, by suggesting that “nonrecord activity of counsel” meets the “or otherwise” test. It is only that activity of which the defendant’s counsel has notice and which would appear of record hut for their amicable progress in the cause that Whitney dealt with, and that is the activity involved here. It is clear that the discovery process, when shown on the docket, is sufficient to toll the running of the year. Rosenfeld v. Glickstein, Fla.App. 1st 1967, 200 So.2d
Defendants’ counsel who keep track of action taken of record or which would appear of record but for agreement with opposing counsel may be reasonably certain that a motion filed after a year of dormancy will be granted no matter how hard the plaintiffs’ counsel claim to have worked sub rosa. Plaintiffs’ attorneys would be well advised to conclude cases within a year or at least make certain that the record reflects a bona fide effort to do so. Trial judges have ample authority to keep both sides working.
Reversed and remanded.
. Gulf Appliance Distributors, Inc. v. Long, Fla.1951, 53 So.2d 706; Davant v. Coachman Properties, Fla.App.2d 1960, 118 So.2d 844; Reilly v. Fuss, Fla.App.2d 1964, 170 So.2d 475.
. We caution against too lenient an interpretation of the “or otherwise” exception. Some readers of Trustees of the Internal Improvement Fund of State of Fla. v. Toffel, Fla.App.2d 1962, 146 . So.2d 737, may overlook the fact that that decision hinges on the failure of the appellant to bring an adequate record before this court.