11 Fla. L. Weekly Supp. 403a
Insurance — Small claims — Dismissal — Failure to prosecute — Denial — Good cause — No abuse of discretion in denying motion to dismiss for failure to prosecute where, although there was no record activity within 6 months, plaintiff had contact with insurer’s counsel and insurer was responsible for significant portion of inactive time by cancelling depositions and ignoring discovery obligations — Further, there is no basis on which to find abuse of discretion where insurer has failed to provide transcript of hearing below
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. LUIS SALZEDO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-541 AP. L.C. Case No. 1999003731 SP 26. March 23, 2004. An Appeal from the County Court for Miami-Dade County. Counsel: Jeffrey David Feldman, for Appellant. Marlene S. Reiss, for Appellee.
(AMY STEELE DONNER, RONALD M. FRIEDMAN, and ARTHUR L. ROTHENBERG, JJ.)
(PER CURIAM.) We hereby AFFIRM the trial court as to all points, and wish to address the trial court’s denial of appellant’s motion to dismiss for failure to prosecute.
In this case, the appellant, United Auto, moved to dismiss the appellee’s claim for lack of prosecution pursuant to Rule 7.110(e) of the Small Claims Rules.1 In response, appellee filed “Plaintiff’s Showing of Good Cause” with the court, which is required to preclude dismissal of the pending action. The trial court denied United Auto’s motion to dismiss for failure to prosecute.
When a motion to dismiss for failure to prosecute is made, a party is required to show either record activity within the prescribed time by the rules, or good cause why the action should remain pending in order to avoid dismissal of the complaint. See National Enterprises, Inc. v. Foodtech Hialeah, Inc., 777 So. 2d 1191, 1193 (Fla. 3d DCA 2001). A showing of good cause requires some contact with opposing counsel, and some form of excusable conduct or occurrence, which is not the result of negligence or inattention to pleading deadlines. See National Enterprises, Inc., 777 So. 2d at 1195. Case law has shown that the principles of equitable estoppel (activity by opposing counsel which equitably estops that party from asserting lack of good cause), constitute good cause for avoiding dismissal in an appropriate case. See American Eastern Corporation v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980). Whether a party has shown good cause to keep an action pending, despite no record activity, is a question committed to the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion. See National Enterprises, Inc. v. Foodtech Hialeah, Inc., 777 So. 2d 1191, 1195 (Fla. 3d DCA 2001).
In the instant case, it is undisputed that there was no record activity within six months as required by Rule 7.110(e). Thus, the pertinent question is whether the trial court abused its discretion in finding that appellee showed good cause, thereby precluding dismissal of the complaint.
A review of the record reflects that Appellee filed a response titled “Plaintiff’s Showing of Good Cause,” indicating that appellee had contact with opposing counsel. Appellee’s response further indicated that United Auto’s conduct was largely responsible for a significant portion of the inactive time because it canceled scheduled depositions and ignored its obligation to provide discovery responses. Since estoppel may be sufficient to establish good cause to preclude dismissal, it appears that appellee met the requirements of establishing good cause. Therefore, the trial court did not abuse its discretion in finding that good cause was established, thereby precluding dismissal of the complaint.
Additionally, the record reflects that United Auto failed to provide a transcript of the hearing in this matter.2 Consequently, this court has no basis on which to find that the trial court abused its discretion.
In light of the foregoing, the trial court’s ruling is hereby AFFIRMED.
As to appellee’s motion for attorney’s fees, it is hereby GRANTED. See Section 627.428 of the Florida Statutes.
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1Rule 7.110(e) is patterned after the Florida Rules of Civil Procedure 1.420(e), which also mandates dismissal if there is no record activity within a certain time period. See Sheen v. The Time Inc. Magazine Co., 817 So. 2d 974 (Fla. 3d DCA 2002).
2Pursuant to Fla. R. App. P. 9.200(f)(2), this court is required to offer an opportunity to the parties to supplement the record before determination of the cause. However, this opportunity may be waived in cases where the deficiency in the record has been pointed out in the brief and the party has failed to move to supplement the record. See Cirillo v. Davis, 732 So. 2d 387 (Fla. 4th DCA 1999); see also Peters v. State of Florida Department of Revenue, o/b/o Eileen Nott, 789 So.2d 1224 (Fla. 4th DCA 2001). Here, appellee points out in its answer brief that the record is deficient due to appellant’s failure to provide the court with a complete record. Appellant failed to move to supplement the record after receiving notice of its deficiencies from the opposing party’s brief. Therefore, appellant has waived compliance with Rule 9.200(f)(2).
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