Smith v. DeLoachSmith v. DeLoach
- Reporters:
- ,
- Before:
- Hall, Campbell, Altenbernd
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
On September 2, 1983, the appellants filed this action against the appelleе, 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 prоceeding 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 thе 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 aрpellants 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
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 аppellants’ 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 оf 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 tо 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 аppellants 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 hаd 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 prоceeding 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
All actions in whiсh 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
We also agree that the court reрorter‘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
(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 considered by the court on any matter pending before the court... .
(B) If the court determines that a deposition previously taken is necessary for the decision of a matter pending before the court, the court may order that a copy be filed by any party at the initial cost of the party.
Since the depositions were filed in violation of the rules of civil procedure, they should not be treated as activity which is “otherwise” of record for purposes of
Having found that the taking and filing of depositions in this case is not record activity, we turn to the appellants’ second contention as relates to
The appellants in their response to the motion to dismiss allege that a prоbate proceeding was pending “and they could not ascertain the amount of damages necessary to proceed in the instant case, that a motion to stay and abate were pending, аnd that the plaintiff‘s depositions were taken within the year.” Relying upon these reasons, the appellants contend that they had established good cause as to why the action should remain pending. We dо not agree.
In order to show good cause as to why the action should remain pending when the record is devoid of activity within the preceding year, a party must show that he is justifiably prevented from proceeding with the lawsuit because of another pending action or that some action taken by the opposing party misled him about the necessity to continue prosecuting the case, creating аn equitable estoppel situation. American E. Corp. at 865.
In the instant case, the resolution of the probate proceeding during the critical year does not create good cause. If the appellants cоrrectly maintain that they had been stalling for years, waiting for the outcome of the probate proceeding, there is no explanation for their failure to file a notice for trial after the probate proceedings were concluded. See Kubera v. Fisher, 483 So.2d 836 (Fla. 2d DCA 1986).
As to the unresolved motions to stay or abate, we cannot agree that this constitutes good cause, as the appellants had filed these motions mоre than one year prior to the hearing and failed to set them down for hearing.
Finally, the appellants rely on the fact that the appellants’ depositions were taken by the appellee within the one year period. The fact that the appellee took the appellants’ depositions would not create a good cause claim on behalf of the appellants. This actiоn by the appellee in no way prevented the appellants from further prosecuting their action. Assuming that unilateral confusion or mistaken reliance could create the necessary goоd cause, there is no evidence that the taking of these depositions misled the appellants about their need to prosecute the case.2 The appellants’ written response does nоt state that the appellants’ attorney erroneously believed the taking of a deposition constituted record activity. Thus, we do not find that the trial court abused its discretion by rejecting this ground for good сause.
Affirmed.
CAMPBELL, C.J., and ALTENBERND, J., concur.