Opinion
No. 4D2023-0897
11-01-2023
Michael BIXBY, Appellant, v. ECP CAPITAL PARTNERS, INC., BW 101, LLC, BW 100, LLC, and David Cohen, Appellees.
James F. Miller of Miller Legal, PL., West Palm Beach, for appellant.
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm Beach County; Frank S. Castor, Judge; L.T. Case No. 502020CC011273.
James F. Miller of Miller Legal, PL., West Palm Beach, for appellant.
No brief filed for appellees.
Gerber, J.
The plaintiff appeals from the county court’s March 2023 order denying the plaintiff’s motion to vacate the court’s December 2022 final order dismissing the plaintiff’s action. The plaintiff argues the county court erred in entering the December 2022 final dismissal order, because the court’s June 2022 order granting the defendant’s motion to dismiss the plaintiff’s complaint with leave to amend did not indicate that the plaintiff’s failure to file an amended complaint within a stated time could result in the court entering a final order dismissing the plaintiff’s action without further notice. We agree with the plaintiff’s argument and thus reverse.
We present this opinion in three sections:
1. The procedural history;
2. The plaintiff’s motion to vacate; and
3. Our review.
1. Procedural History
In December 2020, the plaintiff filed in the county court a three-count complaint against the defendants.
In July 2021, the defendants filed a motion to dismiss the plaintiff’s complaint.
In November 2021, while the defendant’s motion to dismiss was pending, the county court issued a case management order setting various deadlines, including a deadline for filing amended pleadings before trial. The case management order pertinently stated: "The deadlines established in this … [o]rder will be strictly enforced by the Court unless good cause is shown," and [f]ailure to comply with deadlines may subject the parties to sanctions, including but not limited to, striking of … pleadings … and/or dismissal."
In February 2022, the county court held a hearing on the defendants’ motion to dismiss, and orally granted the defendants’ motion as to the plaintiff’s counts I and II with leave to amend, and gave the plaintiff twenty days to file an amended complaint. After the hearing, the parties could not agree on the language to include in the proposed written order to be sent to the court for signature, and thus no written order was entered at that time.
In April 2022, the county court sua sponte inadvertently entered a written order denying the defendants’ motion to dismiss, incorrectly stating: "Defendants failed to set the motion [to dismiss] for hearing. …. The Answer shall be filed within 20 days."
In May 2022, the defendants filed a motion for reconsideration of the April 2022 order. The defendants’ motion reminded the county court that, in February 2022, the court had held a hearing on, and had granted, the defendants’ motion to dismiss. The defendants’ motion notified the court that, after the February 2022 hearing, the parties had not agreed on the language to include in the proposed written order to be sent to the court for signature, and thus no written order had been entered at that time.
In June 2022, the county court held a hearing on the defendants’ motion for reconsideration of the April 2022 order. The plaintiff’s counsel did not attend the hearing. After hearing from the defendants’ counsel, the court entered a written order: (1) vacating its April 2022 order; (2) granting the defendants’ motion to dismiss the plaintiff’s counts I and II with leave to amend; and (3) giving the plaintiff twenty days to file an amended complaint. Significantly, the June 2022 order did not indicate that the plaintiff’s failure to file an amended complaint within twenty days would result in the court dismissing the plaintiff’s action without further notice.
Within twenty days of the county court’s June 2022 order, or in the six months thereafter, the plaintiff did not file an amended complaint.
In December 2022, the county court sua sponte entered a final order finding that because the plaintiff had not filed an amended complaint pursuant to the court’s June 2022 order, the court was dismissing the plaintiff’s action and directing the clerk of court to close the case.
2. The Plaintiff’s Motion to Vacate
Within ten days of the county court’s December 2022 final order dismissing the plaintiff’s action, the plaintiff filed a motion for rehearing and to vacate the court’s final order. The plaintiff’s motion attached a proposed amended complaint and generally asserted that "[t]hrough clerical error, excusable neglect or similarly otherwise," the plaintiff had not filed the amended complaint within twenty days of the June 2022 order. The plaintiff’s motion then argued the county court had erred in sua sponte dismissing the case, citing our holding in Schindler v. Bank of New York Mellon Trust Co., 190 So. 3d 102 (Fla. 4th DCA 2015):
[O]nce a court has dismissed a complaint for failure to state a cause of action, but has granted the party leave to amend, that complaint may subsequently be dismissed with prejudice only if one of two notice conditions are met[:] (1) separate notice to plaintiff of hearing on the motion for dismissal with prejudice or entry of final judgment, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice.
Id. at 105 (citation and internal quotation marks omitted).
In February 2023, the county court entered an order granting the plaintiff’s motion for rehearing, and set a hearing in March 2023 on the plaintiff’s motion to vacate the court’s December 2022 final dismissal order.
At the March 2023 hearing, the plaintiff’s attorney explained the excusable neglect in not having filed the amended complaint within twenty days of the county court’s June 2022 order, or in the six months thereafter. The plaintiff’s attorney also reiterated his argument in support of the motion to vacate based on the principles discussed in Schindler.
Responding to the plaintiff’s argument, the county court commented its November 2021 case management order had "state[d] that failure to abide by the time limits in that order could result in dismissal."
Following the county court’s comment, the defendants’ counsel argued the action’s lengthy history should be attributed to the plaintiff’s failure to prosecute the action. The defendants’ counsel also questioned the veracity of the plaintiff’s excusable neglect claim, and argued the plaintiff’s proposed amended complaint had not cured the complaint’s defects.
Immediately after the hearing, the county court entered a written order denying the plaintiff’s motion to vacate the December 2022 dismissal order. The court recited the case’s lengthy procedural history before stating its reasoning for denying the plaintiff’s motion to vacate:
The Plaintiff has violated the Court’s deadlines as stated in [the] November 2021 [case management order]. [Florida Rule of General Practice and Judicial Administration] 2.545 states, "Judges and lawyers have a professional obligation to conclude litigation as soon as it is reasonably and justly possible to do so." Further, "the trial judge shall take specific steps to monitor and control the pace of litigation."
Here, [the Plaintiff] failed to comply with the [November 2021] Case Management Order, failed to file an Amended Complaint [within the time stated in the June 2022 order], and failed to advance the cause for six months until after the Court entered [the December 2022 final dismissal order].
3. Our Review
The plaintiff then filed this appeal of the county court’s March 2023 order denying the plaintiff’s motion to vacate the court’s December 2022 final dismissal order. The plaintiff primarily argues:
The [county] court … committed error by sua sponte dismissing the [plaintiff’s] entire lawsuit in the absence of providing one of two notice conditions: (1) separate notice to [the plaintiff] of a hearing on a motion for dismissal with prejudice or entry of final judgment, or (2) the [June 2022] order dismissing the complaint with leave to amend specifically provid[ing] that on failure to amend within the stated time, the cause will be dismissed without further notice. Neither occurred here, with [the June 2022 order] containing no such language.
Applying de novo review, we agree with the plaintiff that the county court’s March 2023 order erred in denying the plaintiff’s motion to vacate the court’s December 2022 final dismissal order. See Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 790 (Fla. 2011) ("[W]e apply a de novo standard of review when the construction of a procedural rule is at issue.").
The county court’s March 2023 order denying the plaintiff’s motion to vacate relies on Florida Rule of General Practice and Judicial Administration 2.545. However, neither the county court’s March 2023 order, nor the county court’s December 2022 final dismissal order, cited a proce dural rule upon which the county court had based those orders.
If the county court based its December 2022 final dismissal order or its March 2023 order denying the plaintiff’s motion to vacate upon Florida Rule of Civil Procedure 1.420(b) or Florida Small Claims Rule 7.110(b), that reliance would have been misplaced. Both rules provide, in pertinent part, "Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court " Fla. R. Civ. P. 1.420(b); Fla. Sm. Cl. R. 7.110(b) (emphasis added).
However, we interpreted rule 1.420(b) in Schindler v. Bank of New York Mellon Trust Co., 190 So. 3d 102 (Fla. 4th DCA 2015), as follows:
A trial court cannot dismiss a case with prejudice under rule 1.420(b) for failure to amend if it has not first notified the offending party of the consequences of failing to amend . … [O]nce a court has dismissed a complaint for failure to state a cause of action, but has granted the party leave to amend, that complaint may subsequently be dismissed with prejudice only if one of two notice conditions are met[:] (1) separate notice to plaintiff of hearing on the motion for dismissal with prejudice or entry of final judgment, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice .
Id. at 105 (emphasis added; citations and internal quotation marks omitted).
Here, while the county court’s June 2022 order dismissing the complaint with leave to amend gave the plaintiff "[twenty] days to file [an] amended complaint," the June 2022 order did not, as Schindler requires, "specifically provide[] that on failure to amend within the stated time, the cause will be dismissed without further notice[.]" 190 So. 3d at 105.
The county court instead misplaced its reliance on its November 2021 case management order as providing the basis to enter its March 2023 order denying the plaintiff’s motion to vacate the court’s December 2022 final dismissal order. The November 2021 case management order pertinently stated: "The deadlines established in this … [o]rder will be strictly enforced by the Court unless good cause is shown," and [f]ailure to comply with deadlines may subject the parties to sanctions, including but not limited to, striking of … pleadings … and/or dismissal." (emphasis added). However, the November 2021 case management order did not set the twenty-day deadline for the plaintiff to file an amended complaint. Rather, the November 2021 case management order set a deadline for filing amended pleadings before trial.
Further, if the county court alternatively based its December 2022 final order dismissing the plaintiff’s action and its March 2023 order denying the plaintiff’s motion to vacate upon Florida Small Claims Rule 7.110(e) or Florida Rule of Civil Procedure 1.420(e), that reliance also would have been misplaced. Rule 7.110(e) pertinently provides:
Failure to Prosecute. All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court, or otherwise for a period of 6 months shall be dismissed by the court on its own motion …, after 30 days’ notice to the parties , unless a stipulation staying the action has been filed with the court, or a stay order has been filed, or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Fla. Sm. Cl. R. 7.110(e) (emphasis added). Florida Rule of Civil Procedure 1.420(e) similarly requires "reasonable notice to the parties" where "no activity … has occurred for a period of 10 months ." Fla. R. Civ. P. 1.420(e) (emphasis added).
Here, while the inactivity between the county court’s June 2022 order granting the plaintiff leave to amend and the county court’s December 2022 order dismissing the plaintiff’s action was six months, the county court failed to issue a failure to prosecute notice under Florida Small Claims Rule 7.110(e). Thus, the county court’s December 2022 final dismissal order constitutes reversible error. See Mote Wellness & Rehab, Inc. v. State Farm. Mut. Auto. Ins. Co., 331 So. 3d 191, 192 (Fla. 4th DCA 2021) ("A court’s failure to provide the requisite notice prior to sua sponte dismissing an action for lack of prosecution constitutes reversible error.").
Conclusion
We appreciate the county court’s expressed intent to discharge its duties under rule 2.545 "to conclude litigation as soon as it is reasonably and justly possible to do so" and "take specific steps to monitor and control the pace of litigation," especially given the plaintiff’s months-long delays in prosecuting his action. However, neither rule 2.545 nor the county court’s November 2021 case management order provided the court with the procedural basis upon which to enter its December 2022 final dismissal order or its March 2023 order denying the plaintiff’s motion to vacate. Rather, the county court was bound to follow the procedural rules cited above – which are rooted in due process rights of notice and an opportunity to be heard – before dismissing the plaintiff’s action.
Based on the foregoing, we reverse the county court’s March 2023 order denying the plaintiff’s motion to vacate the court’s December 2022 final dismissal order. We remand for the court to vacate its December 2022 final dismissal order, accept the filing of the plaintiff’s amended complaint, and set a time certain by which the defendants may file any substantive motions or answers in response to the amended complaint.
Reversed and. remanded for proceedings consistent with this opinion.
Levine and Conner, JJ., concur.