Opinion
No. 71-60.
September 17, 1971. Rehearing Denied October 21, 1971.
Appeal from the Circuit Court, Broward County, L. Clayton Nance, J.
Ernest G. Simon, Delray Beach, and Jay A. Swidler, Miami, for appellant.
Daniel A. Sorrentino, and George C. Vogelsang, Miami, for appellees.
Appellant-plaintiff, Joseph A. Licausi, appeals an order in favor of appellees-defendants, Airport Transportation Service, Inc., et al., dismissing a cause of action 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 court reporter filed with the clerk the deposition of the plaintiff. Although the deposition had been taken at the instance of defendants at a time more than one year prior to the filing of the motion to dismiss, the filing of the deposition constitutes an affirmative showing of prosecution of the action. The record further reflects that request for admissions was filed by the plaintiff within a one-year period prior to the motion to dismiss, rendering a motion to dismiss filed under Rule 1.420(e), FRCP, 30 F.S.A., premature. Musselman Steel Fabricators, Inc. v. Radziwon, Fla.App. 1971, 250 So.2d 327; Eastern Elevator, Inc. v. Page, Fla.App. 1971, 250 So.2d 326; Fund Insurance Companies v. Preskitt, Fla.App. 1970, 231 So.2d 866; Cypress Corporation of Florida v. Smith, Fla.App. 1969, 218 So.2d 481; Rosenfeld v. Glickstein, Fla.App. 1967, 200 So.2d 242; Owens v. Ken's Paint and Body Shop, Fla.App. 1967, 196 So.2d 17.
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 and CROSS, JJ., and ADAMS, ALTO (Ret.), Associate Judge, concur.