Fuster-Escalona v. Wisotsky

715 So. 2d 1053, 1998 WL 422223

Opinion

715 So.2d 1053 (1998)

Francisco FUSTER-ESCALONA, Appellant,
v.
Steven J. WISOTSKY and Nova Southeastern University, Inc., a/k/a Nova University, Shepard Broad Law Center, Appellees.

No. 96-1820.

District Court of Appeal of Florida, Fourth District.

July 29, 1998.

Francisco Fuster-Escalona, Lake Butler, pro se.

Steven Wisotsky, Coconut Grove, pro se.

Heidi F. Friedman of Panza, Maurer, Maynard & Neel, P.A., Fort Lauderdale, for Appellee-Nova Southeastern University, Inc., a/k/a Nova University, Shepard Broad Law Center.

ON MOTION FOR REHEARING

PER CURIAM.

We grant rehearing, withdraw our previous opinion of February 11, 1998, and substitute the following in its place.

This is an appeal from a final order of dismissal for appellant's failure to prosecute this legal malpractice action for more than one year pursuant to Florida Rule of Civil Procedure 1.420(e). In the absence of valid record activity for the year preceding the motion for dismissal and in the absence of sufficient record evidence of good cause for appellant's failure to prosecute this claim, we cannot conclude that the trial court's dismissal was an abuse of discretion. See Toney v. Freeman, 600 So.2d 1099, 1100 (Fla.1992)(stating that "[r]ecord activity must be more than a mere passive effort to keep the case on the docket; the activity must constitute an affirmative act to hasten the suit to judgment."). In our view, the mere filing of a motion to recuse the trial judge, without any attempt to set the motion for hearing, is not sufficient to excuse a plaintiff's lack of record activity during the year in which the motion—not noticed for hearing— remained pending.

AFFIRMED.

WARNER and STEVENSON, JJ., and PARIENTE, BARBARA J., Associate Judge, concur.