Litigation regarding a motion for attorney's fees and costs constitutes record activity directed toward the disposition of a cause for purposes of preventing dismissal for failure to prosecute.
A plaintiff appeals a trial court order dismissing a medical malpractice action for failure to prosecute. After a summary judgment was entered for one defendant, the court held an evidentiary hearing regarding a motion for attorney's fees and costs filed by that defendant. The trial court later dismissed the remaining action, finding that the litigation regarding the award of fees and costs did not constitute record activity directed toward the disposition of the cause. The appellate court reverses, holding that such litigation constitutes sufficient record activity to prevent dismissal for lack of prosecution.
Other citing cases
- Devane v. P.J. Constructors, Inc., 710 So. 2d 1375 (Fla. 5th DCA 1998).published
- Simmons v. Dakal Dev. Corp., 632 So. 2d 717 (Fla. 2d DCA 1994).published
v.
Dr. Howard J. SCHUELE; Dr. Fred Tucker; Dr. Arvelio De La Torre; Morton F. Plant Hospital Association, Inc.; and Florida Patient's Compensation Fund, Appellees.
[*818] Joseph Egan, Jr., of Egan, Lev & Siwica, Orlando, for appellant.
William E. Hennen of Marlow, Shofi, Smith, Hennen, Smith & Jenkins, P.A., Tampa, for appellees Schuele and De La Torre.
Bradley J. Goewert of McClain & Associates, P.A., Tampa, for appellee Tucker.
Thomas J. Kennedy of Shear, Newman, Hahn & Rosenkranz, Tampa, for appellee Florida Patient's Compensation Fund.
PATTERSON, Judge.
The plaintiff below appeals from a final order of the trial court dismissing this medical malpractice action for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). We reverse.
In May 1987, the trial court granted a final summary judgment in favor of Morton F. Plant Hospital, one of the defendants. The plaintiff appealed, and this court affirmed. On May 17, 1988, the hospital filed a motion for the award of attorney's fees and costs pursuant to section 768.56, Florida Statutes (1980). An evidentiary hearing was held on this motion on August 3, 1988, and the court entered final judgments awarding costs and fees to the hospital on August 9, 1988.
On May 24 and 26, 1989, the remaining defendants filed motions to dismiss for failure to prosecute the action for more than one year. The trial court ruled that the August 1988, litigation concerning the award of fees and costs to the hospital did not constitute record activity directed toward the disposition of the cause as to one of multiple defendants and granted the motions. This determination was in error. See Biscayne Awning & Shade Co., Inc. v. Miami Beach Awning Co., 565 So.2d 740, (Fla. 3d DCA 1990).
Reversed and remanded.
CAMPBELL, A.C.J., and THREADGILL, concur.