Hunter v. Cal-Maine Foods, Inc.

DAUKSCH, Judge. This is an appeal from a judgment entered after a dismissal for failure to prosecute. Because appellant filed a notice to produce within one year before the motion to dismiss was filed, we reverse the order of dismissal pursuant to Florida Rule of Civil Procedure 1.420(e). See Henson v. Whorf, 466 So.2d 23 (Fla. 5th DCA 1985); Orange Electric Company v. Hughes Supply, Inc., 467 So.2d 479 (Fla. 5th DCA 1985). While we have great sympathy with the trial court and appellee’s argument that the discovery sought was not such that would actually bring the matter to a trial posture we are giving the benefit of the doubt to appellant. It is our recommendation that the trial judge set this case for trial at the earliest time convenient to the court because counsel has been reluctant, for whatever reason, to do so. Both parties are entitled to an early resolution of the dispute. The judgment is set aside, the order reversed and the complaint, counterclaim and defense pleadings reinstated and this cause remanded for trial. REVERSED and REMANDED. UPCHURCH and SHARP, JJ., concur.