Opinion
Nos. 75-2296, 75-2297.
March 25, 1977.
Appeal from the Circuit Court for Palm Beach County, Lewis Kapner, J.
Robert McK. Foster, Palm Beach, for appellant.
James E. Weber of Burns, Weber Boyes, West Palm Beach, and Nowlin Adams, Delray Beach, for appellees First National Bank of Delray Beach and Gladys M. Quick.
This is an appeal from an order dismissing appellant's action for lack of prosecution. There were lengthy and repeated delays in prosecution, indicated in some detail in Judge Cobb's dissenting opinion. But the action was not dismissible under Fla.R.Civ.P. 1.420(e) because appellant propounded interrogatories immediately before appellee filed its motion to dismiss for nonprosecution. Flack v. Kuhn, 277 So.2d 593 (Fla. 4th DCA 1973); City of Jacksonville v. Hinson, 202 So.2d 806 (Fla. 1st DCA 1967). Appellee urges that the case was nevertheless properly dismissed in the trial court's inherent power. We hold this case does not fall in the narrow class of cases which may be dismissed for failure to prosecute notwithstanding that Rule 1.420(e) is inapplicable.
Reddish v. Forlines, 207 So.2d 703, 704-05 (Fla. 1st DCA 1968), recognized that trial courts have inherent power to dismiss an action for failure to prosecute because of delay in securing service of process. Accord, Gonzalez v. Ryder Systems, Inc., 327 So.2d 826 (Fla. 3d DCA 1976). This, obviously, is not such a case. Judicial statements giving wider range to the trial court's discretion to dismiss have been made as dicta in cases held improperly dismissed, or as alternative holdings in cases dismissible under the Rule. Popkin v. Crispen, 213 So.2d 445, 448 (Fla. 4th DCA 1968), cert. den., 222 So.2d 748 (Fla. 1969); Shalabey v. Memorial Hosp. of South Broward Hosp. Dist., 253 So.2d 712, 714-15 (Fla. 4th DCA 1971), cert. den., 257 So.2d 562 (Fla. 1972); Nicholson v. Eli Lilly and Co., 285 So.2d 648 (Fla. 3d DCA 1973), cert. den., 293 So.2d 717 (Fla. 1974).
It has also been held that the trial court is empowered, in the exercise of sound discretion, to dismiss a cause or deny relief for plaintiff's failure to prosecute in response to a direct order. See State ex rel. Croker v. Chillingworth, 106 Fla. 323, 143 So. 346 (1932); Maloy v. Bristow, 138 So.2d 801 (Fla. 3d DCA 1962), cert. den., 146 So.2d 381 (Fla. 1962), cert. den., 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963); McLean v. McLean, 340 So.2d 493 (Fla. 1st DCA 1976). That power must be sparingly exercised. Palm Shores, Inc. v. Nobles, 149 Fla. 103, 5 So.2d 52 (1941); Popkin, supra, 213 So.2d at 448; Rowley v. Bankers United Life Assur. Co., 311 So.2d 380 (Fla. 3d DCA 1975). In the case before us there was no direct order which sought to speed prosecution of the languishing action. It was therefore error to dismiss the action.
REVERSED.
CROSS, J., concurs.
COBB, WARREN H., Associate Judge, dissents, with opinion.
In this cause the trial court dismissed for lack of prosecution. Although it is not apparent from the face of the order or the final judgment of dismissal entered by the trial court, it is clear from the record, the briefs and oral argument of counsel that the dismissal was argued to, and considered by, the trial court on the basis of the inherent power of the court, acting as a matter of discretion, as opposed to a mandatory dismissal pursuant to Fla.R.Civ.P. 1.420(e). Therefore, this case should be reviewed from that perspective.
This provision was amended effective January 1, 1977 to provide that mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.
It is clear that the trial court had inherent power to dismiss for failure to diligently prosecute independent of any rule of court. Nicholson v. Eli Lilly and Co., 285 So.2d 648 (Fla. 3d DCA 1973); Shalabey v. Memorial Hospital of South Broward Hospital District, 253 So.2d 712 (Fla. 4th DCA 1971); Popkin v. Crispen, 213 So.2d 445 (Fla. 4th DCA 1968); and Reddish v. Forlines, 207 So.2d 703 (Fla. 1st DCA 1968). See also 24 Am.Jur.2d Dismissal, Discontinuance and Nonsuit § 59 and 167 A.L.R. 1062.
The record herein reveals that the appellant, as plaintiff, filed complaint on June 11, 1970. Various motions were filed and hearings held in regard to the complaint; an amended complaint was allowed to stand in May 1971. On June 21, 1971, the appellees, as defendants, filed their answer. Thereafter, in 1971 and 1972, three attempts by defendants to depose plaintiff, who apparently suffered some mental or physical infirmity, were thwarted by protective orders. During this period, plaintiff filed requests for admission on June 30, 1972. These were objected to and the objections were denied on August 3, 1972. In September 1972 the defendants took the depositions of two witnesses.
After a hearing on October 5, 1972, on plaintiff's motion for a protective order, which was granted, the case apparently languished until October of 1973, at which time an additional law firm appeared of record for plaintiff and the defendants moved to dismiss for failure to prosecute. At the same time, one of the defendants objected to interrogatories served upon it by plaintiff on October 11, 1973.
Almost another year then elapsed until, on September 16, 1974, the plaintiff moved to compel answers to the 1973 interrogatories.
The following year, on September 10, 1975, a suggestion of the plaintiff's incompetency was filed and a motion was made to substitute the guardian of his property as party plaintiff. This motion, together with the motion to compel and the motion to dismiss for failure to prosecute, were all noticed for hearing to be held on September 17, 1975. Subsequent thereto, on September 29, 1975, the trial court entered an order "that the motion to dismiss shall be granted." Judgment of dismissal, following motion for rehearing, was filed on December 17, 1975, from which this appeal ensued.
As a consequence of the posture in which this case is presented, the issue may be stated in succinct fashion: did the trial court abuse its inherent discretion in dismissing this cause?
It was pointed out by this court in Popkin, supra, and again in Shalabey, supra, that a trial court's discretionary dismissal for failure to diligently prosecute creates a heavy burden which must be borne on appeal by the losing party.
In my view the appellant, who gave only spasmodic annual attention to this cause in the trial court over a four year period, clearly has not met that burden. I would affirm.