Estate of Kernan v. Gifford

426 So. 2d 1141, 1983 Fla. App. LEXIS 18599

Opinion

MILLS, Judge.

The Estate’s personal representative appeals an order dismissing an action filed by Kernan for failure to prosecute. We reverse.

The motion to dismiss was filed on 31 December 1981. A review of the record reveals considerable activity during 1981. A deposition was taken and filed, interrogatories were answered, numerous depositions were noticed or rescheduled, a successor personal representative was named, and commissioners to take out-of-state depositions were appointed. This record activity precludes dismissal for failure to prosecute. Harris v. Winn-Dixie Stores, 378 So.2d 90 (Fla. 1st DCA 1979); Florida Rule of Civil Procedure 1.420(e).

The order is reversed, this case is remanded with directions to reinstate the action and to appoint another successor personal representative as agreed by the parties.

ERVIN, J., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.