Releases from the 4th DCA 01/18/12

MEDICAL MALPRACTICE

Stubbs v. Surgi-Staff, Inc., 78 So. 3d 69, 2012 Fla. App. LEXIS 531 (Fla. 4th DCA 2012) held that where a hospital orderly instructed plaintiff to move from a test bed to a gurney and then she fell while attempting this due to the orderly’s negligence, the trial court properly dismissed the case for failure to comply with Florida Statutes chapter 766’s pre-suit requirements.  The complaint was based on medical malpractice because it sounded in negligence attributable to the orderly’s provision of medical care and services.

See http://www.4dca.org/opinions/Jan%202012/01-18-12/4D10-691.op.pdf

FAILURE TO PROSECUTE

In DRD Marine Corp. v. Byrd Techs., Inc., 77 So. 3d 867, 2012 Fla. App. LEXIS 525 (Fla. 4th DCA  2012), the court reversed a dismissal for failure to prosecute pursuant to a motion filed in 2010, alleging “large gaps of non-record activity which occurred before 2008.”  First, the defendant did not file the notice required under rule 1.420(e), and second, there was record activity in the ten months immediately preceding the service of the motion.

See http://www.4dca.org/opinions/Jan%202012/01-18-12/4D10-4773.op.pdf

MOTION TO VACATE

In Block v. Tosun, 77 So. 3d 871, 2012 Fla. App. LEXIS 534 (Fla. 4th DCA 2012), the court reversed an order setting aside a 1992 default final judgment that was granted without an evidentiary hearing.  After nearly 18 years of no record activity, defendant was served with a subpoena in aid of execution, prompting the motion to vacate.  The original return of service had been destroyed by the clerk.  The court held that the clerk’s progress docket, together with the fact that a final judgment had been entered, did not warrant the same weight as a facially valid return of service but was sufficient to create a rebuttable presumption which defendant will have to defeat at an evidentiary hearing with credible, admissible evidence that he was not properly served with process.

See http://www.4dca.org/opinions/Jan%202012/01-18-12/4D11-1594.op.pdf