Summary
In Ezell, this court held that, absent a hearing transcript, the plaintiff failed to meet his burden of showing abuse of discretion where the trial court found that the plaintiff's summary judgment motion was defective and was filed in bad faith merely to keep the case on the court's docket without further prosecution.
Summary of this case from Devane v. P.J. Constructors, Inc.Opinion
No. 92-1366.
March 12, 1993.
Appeal from the Circuit Court, Brevard County, Tonya B. Rainwater, J.
Michael S. Minot of Minot Minot, Cocoa, for appellant.
James L. Reinman and Michael E. Dujovne of Reinman, Harrell, Graham, Mitchell Wattwood, P.A., Melbourne, for appellee.
Melvin Ezell appeals from the trial court's final judgment of dismissal of his case alleging breach of a fiduciary duty and fraud against Century 21 of the Southeast, Inc. (Century 21). Ezell argues that the trial court erred by dismissing Ezell's cause of action for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). We affirm.
The complaint in this case was filed on November 12, 1986. The record shows that the only record activity within the one year period preceding Century 21's motion to dismiss was a motion for summary judgment filed by Ezell on October 8, 1991. In the motion for summary judgment, Ezell did not state with particularity the grounds upon which the motion was based nor the substantial matters of law to be argued, as required by Florida Rule of Civil Procedure 1.510(c). Furthermore, Ezell did not attach any affidavits to the motion and did not set the motion for a hearing. On November 27, 1991, Century 21 filed a motion to dismiss under Florida Rule of Civil Procedure 1.420(e), alleging Ezell's failure to prosecute. After a hearing on Century 21's motion to dismiss, the trial court entered a final judgment of dismissal expressly finding that Ezell's motion for summary judgment was merely a passive effort taken in bad faith to keep the suit on the court's docket and taken without any design to move the case toward a conclusion on the merits.
Ezell's motion simply stated:
Comes now Compass Points, Inc., Compass Points Realty, Inc., Compass Points Ltd., Inc., and Melvin Ezell individually, Pro-Se in the above-styled and numbered causes and moves the court for Summary Judgment, in his/their favor and against the Defendants and in support hereof would respectfully show the court as follows:
(1) That there have been numerous depositions of the parties and witnesses, with and without the production of documents, in these actions,
(2) That there have also been numerous notices for the production of documents and/or other evidence in both actions,
(3) That there have also been numerous interrogatories directed to all parties [sic] actions,
(4) That as a result of the foregoing there is a substantial body of evidence of record in the subject actions,
(5) That all of the depositions, interrogatories, documents, and other evidence of record herein shows conclusively that the plaintiffs are entitled to judgment, as a matter of law, and; that here [sic] are no issues for the court to decide.
In reaching its conclusion, the trial court relied on Del Duca v. Anthony, 587 So.2d 1306 (Fla. 1991). In Del Duca, the supreme court expressly held that where the trial court is considering whether to dismiss an action for failure to prosecute and some discovery activity has occurred during the preceding year, the trial court is permitted to grant the motion to dismiss if it finds that the discovery is in bad faith and also is without any design to move the case toward a conclusion on its merits. Id. at 1309. In interpreting Rule 1.420(e), the Del Duca court approved the Second District Court of Appeal's decision in Anthony v. Schmitt, 557 So.2d 656 (Fla. 2d DCA 1990) that the trial court has discretion to dismiss an action when the only record activity for the previous year was bad faith activity, which means activity that is "frivolous or clearly useless" to further prosecute the case. Id.
In Anthony, the court stated:
Typically, discovery should not be regarded as bad faith activity unless the discovery is frivolous or clearly useless in the further prosecution of the case. In many respects, this holding is similar to a requirement that the trial court strike the discovery as sham or pretextual record activity, allowing the trial court then to dismiss the action because more than one year has elapsed without record activity. Cf. Mikos v. Sarasota Cattle Co., 453 So.2d 402 (Fla. 1984) (a plaintiff's notice of trial will not bar dismissal for lack of prosecution if the plaintiff subsequently indicates unreadiness for trial); Fla.R.Civ.P. 1.150.
Anthony, 557 So.2d at 662. For clarification, we note that the motion for summary judgment in the instant case is not a pleading for purposes of a motion to strike a sham pleading under Rule 1.150.
On appeal, Ezell argues that no evidence in the record supports the trial court's finding that Ezell filed his motion in bad faith merely to keep the case on the court's docket without further prosecuting the case. However, the record does not contain a transcript of the hearing, and thus, Ezell has failed to meet his burden of showing an abuse of discretion in the trial court's finding. See Huertas v. Palm Beach County, 602 So.2d 553, 554 (Fla. 4th DCA 1992); Metropolitan Transit Auth. v. Kaneva, 351 So.2d 748 (Fla. 3d DCA 1977). We find that the Del Duca test applies to Ezell's motion for summary judgment in this case, and in the absence of a transcript, we are unable to find that the trial court abused its discretion.
Similarly, in a recent opinion, this court held that filing a motion for a mediation conference without setting the motion for a hearing or any other follow-up activity is not record activity within the meaning of Rule 1.420(e) under the Del Duca test. See Heinz v. Watson, 615 So.2d 750 (Fla. 5th DCA 1993).
AFFIRMED.
DIAMANTIS, J., concurs.
DAUKSCH, J., dissents with opinion.
I respectfully dissent.
Appellant, a lay person representing himself, filed a motion for summary judgment. Approximately six weeks after this motion was filed appellee moved to dismiss the case because, according to appellee, the movant's attorney had withdrawn one year earlier and this motion for summary judgment was filed for "the purpose of delay and does not constitute adequate discovery [sic] to move the case forward toward conclusion." Appellee also moved to strike the motion as a sham pleading. On appeal appellee concedes a motion is not a pleading and is not subject to being stricken under Rule 1.150, Florida Rule of Civil Procedure, notwithstanding the fact that appellee succeeded in having the trial judge order the motion "judicially canceled" [sic] and declare the motion a "sham pleading."
After the motion was "judicially canceled" [sic] the judge declared "this action [sic] be dismissed for lack of prosecution."
The motion for summary judgment urged the court to examine the evidence of record, which evidence, he says, consisted of depositions, documents and interrogatories (which I assume means answers to interrogatories), and enter summary judgment because he is entitled to it as a matter of law.
While I quite agree the motion could have been more artfully drawn, would have been better if supported by affidavit and perhaps the movant should have tried to call it up for hearing, it was filed within the one year and was barely sufficient and should have been dealt with by the court properly. In my opinion a motion for summary judgment filed within one year of the last in-court action is sufficient to forestall entry of a judgment dismissal for failure to prosecute.
I would reverse and remand for further proceedings.