Ortiz v. Biscayne Medical Center, Inc.

385 So. 2d 1146

• Court: District Court of Appeal of Florida
• Decided: July 8, 1980
• Docket: 79-1969
• Status: Published

Opinion

385 So.2d 1146 (1980)

Roberto ORTIZ, Appellant,
v.
BISCAYNE MEDICAL CENTER, INC. and Emergency Physician Associates, P.A., Appellees.

No. 79-1969.

District Court of Appeal of Florida, Third District.

July 8, 1980.

Greene & Cooper and Robyn Greene, Rosenblatt, Greene & Arnowitz, Miami, for appellant.

Preddy, Kutner & Hardy and G. William Bissett, Walton, Lantaff, Schroeder & Carson and Bernard I. Probst, Miami, for appellees.

Before HENDRY, NESBITT and BASKIN, JJ.

BASKIN, Judge.

Roberto Ortiz, plaintiff in the medical malpractice action below, appeals an order dismissing the cause for lack of prosecution. We reverse.

On May 29, 1979, the defendants, appellees herein, filed a motion to dismiss for lack of prosecution, claiming that no activity had occurred in the case for a period of one year. The record discloses, however, that this court, by order dated June 29, 1978, and filed in the circuit court on August 18, 1978, denied a petition for writ of common law certiorari.

The order of this court which denied the petition for writ of certiorari and was filed in the circuit court is record activity within the meaning of Rule 1.420(e), Florida Rules of Civil Procedure. See Brennan v. Ryter, 339 So.2d 661 (Fla. 1st DCA 1976). Less than a year elapsed between the recording of this court's order and the motion to dismiss. "Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute." Fla.R.Civ.P. 1.420(e).

The order of dismissal is therefore reversed and the cause remanded for further proceedings.