Flack v. Kuhn

277 So. 2d 593

Opinion

277 So.2d 593 (1973)

Joseph FLACK and Grace Flack, a/K/a Grace Klein, Individually and As Stockholders of and for the Use and Benefit of Klein & Chrestensen Reporting Service, Inc., a Florida Corporation, Appellants,
v.
Geneva KUHN and Joleen Chrestensen, D/B/a Joleen Chrestensen & Associates, Appellees.

No. 71-351.

District Court of Appeal of Florida, Fourth District.

May 10, 1973. Rehearing Denied June 6, 1973.

John H. Lewis, Miami, for appellants.

Robert J. O'Toole, Fort Lauderdale, for appellee-Joleen Chrestensen.

PER CURIAM.

Appellants-plaintiffs, Joseph Flack and Grace Flack, appeal a final order in favor of appellees-defendants, Geneva Kuhn and Joleen Chrestensen, dismissing appellants' complaint for want of prosecution. We reverse.

The record discloses that within a one-year period immediately prior to the filing of the motion to dismiss, the appellants filed a notice of taking deposition, as well as a notice of appearance of counsel. The filing of the notice of taking deposition constitutes an affirmative showing of prosecution of the action within the meaning of Fla.R.Civ.P. 1.420(e), 30 F.S.A. Rosenfeld v. Glickstein, 200 So.2d 242 (Fla. App. 1967); Owens v. Ken's Paint and Body Shop, 196 So.2d 17 (Fla.App. 1967); see also Licausi v. Airport Transportation Service, Inc., 252 So.2d 835 (Fla.App. 1971); Musselman Steel Fabricators, Inc. v. Radziwon, 250 So.2d 327 (Fla.App. 1971).

Accordingly, the order dismissing the cause of action for want of prosecution is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

WALDEN, CROSS and MAGER, JJ., concur.