Diaz v. Public Health Trust of Dade County

BASKIN, Judge

(specially concurring).

Florida Rule of Civil Procedure 1.420(e) requires dismissal of an action if no record activity has occurred for a period of one year unless a party presents written good cause why the action should remain pending. The majority indicates that appellant’s counsel’s pregnancy constituted good cause for her failure to prosecute. I disagree. Pregnancy alone, without complications, is not a physical disability. A review of the record reveals no evidence of complications which might have prevented counsel from attending to appellant’s cause. An examination of the unsworn showing of good cause for failing to advance the case discloses that the pregnancy was cited to the trial court merely as an afterthought.

I agree with the result reached by the majority, however, because it is premised on another ground. A ruling on a motion for dismissal for failure to prosecute may be disturbed if it constitutes an abuse of discretion. Industrial Trucks of Fla., Inc. v. Gonzalez, 351 So.2d 744, 746 (Fla. 3d DCA 1977); Douglas v. Eiriksson, 347 So.2d 1074, 1075 (Fla. 1st DCA), cert. denied, 353 So.2d 674 (Fla.1977); Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So.2d 126, 127 (Fla. 3d DCA 1975). The trial court’s belated dismissal, causing appellant to advance the action unnecessarily, constituted such an abuse of discretion.