Opinion
No. 3D99-0820.
Opinion filed January 5, 2000.
An appeal from the Circuit Court for Dade County, Ronald M. Friedman, Judge, L.T. No. 95-15977.
Liebler, Gonzalez Portuondo and J. Randolph Liebler, for appellant.
Ricardo R. Corona, for appellee.
Before COPE, GREEN and FLETCHER, JJ.
We reverse the order dismissing this case for failure to prosecute.
Plaintiff National Enterprises, Inc. filed this action against defendant Foodtech Hialeah, Inc. in 1995. Defendant filed a counterclaim and plaintiff moved to dismiss it. The motion to dismiss counterclaim was granted.
In 1997 there was a stipulation for substitution of counsel, followed by a period of inactivity. In December 1998 plaintiff's successor counsel filed a notice of hearing on the motion to dismiss the counterclaim. Plaintiff's counsel explains that the file he was provided by predecessor counsel did not contain an order disposing of the motion to dismiss the counterclaim, so it appeared to successor counsel that the action was not yet at issue. Consequently, successor counsel filed a notice of hearing on the motion to dismiss the counterclaim.
Defense counsel requested that the hearing be rescheduled, and plaintiff did so. On January 14, 1999, plaintiff renoticed the hearing for later in the month.
The next day, January 15, defendant filed a motion to dismiss for lack of prosecution. The bare-bones motion did not explain defendant's rationale for dismissal. When the matter was heard, defendant argued that plaintiff's notices of hearing should be treated as a nullity, because the motion to dismiss the counterclaim had already been ruled on.
In response plaintiff's counsel explained, as stated above, that he was successor counsel and that his file did not contain the order disposing of the motion to dismiss counterclaim. He argued that his action in noticing the hearing on the believed-to-be-pending motion was fairly viewed as action taken to move the case forward.
The trial court granted the motion to dismiss for failure to prosecute, and plaintiff has appealed.
The Florida Supreme Court has said that proceedings on a motion to dismiss for failure to prosecute involves a two-step process:
First, the defendant is required to show there has been no record activity for the year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed.
Del Duca v. Anthony, 587 So.2d 1306, 1308-09 (Fla. 1991).
The question in Del Duca was whether discovery propounded by plaintiff constituted sufficient record activity to avoid dismissal for failure to prosecute. The court said that the inquiry in the first step involves "whether there was, in fact, record activity within the year that was not `a mere passive effort to keep the suit on the docket.'" Id. at 1309 (citations and some internal quotation marks omitted). The court held that the trial judge could "dismiss the cause if the discovery is in bad faith and is also `without any design "to move the case forward toward a conclusion on the merits."'" Id. (citations omitted; emphasis in original).
In the present case, plaintiff filed a notice of hearing on what plaintiff believed was a pending motion to dismiss counterclaim. That motion was calculated to close the pleadings, so that a notice of trial could be filed. Such an action is calculated to move the case toward conclusion and is not a mere passive effort to keep the suit on the docket. See id. at 1309 (citation omitted); see Escalona v. Kersten, 682 So.2d 223 (Fla. 3d DCA 1996); Jones v. Garcia, 536 So.2d 277 (Fla. 2d DCA 1988).
The fact that successor counsel was laboring under a mistaken belief that this particular motion had not yet been decided is not fatal to plaintiff's position. There is no indication that the notice of hearing was filed in bad faith. See Del Duca, 587 So.2d at 1309. The point of the failure-to-prosecute rule is to assure that the plaintiff take action to move the case toward conclusion. The plaintiff in this case was doing exactly what the rule is designed to accomplish. If plaintiff had known that this motion had already been decided, then plaintiff simply would have filed a notice for trial.
After defendant informed plaintiff that the counterclaim had already been disposed of, plaintiff filed a notice for trial. That was, however, after defendant filed the motion to dismiss for failure to prosecute.
The defendant relies on this court's decision in Alech v. General Insurance Co., 491 So.2d 337 (Fla. 3d DCA 1986), which held that the filing of a notice of trial when the case was not at issue was a nullity and did not constitute record activity for purposes of the failure-to-prosecute rule. Id. at 337-38. Defendant contends that Alech requires plaintiff's notices of hearing to be treated as nullities. We do not think this court's decision in Alech survives the reasoning of the Florida Supreme Court in its later decision in Del Duca. Under Del Duca the question is whether the filing was done in bad faith and without a design to move the case toward a conclusion on the merits. See 587 So.2d at 1309. The same analysis applies to Buss Aluminum Products, Inc. v. Crown Window Co., 651 So.2d 694 (Fla. 2d DCA 1995), on which defendant also relies.
Assuming arguendo, however, that these notices of hearing filed by the plaintiff could not be treated as record activity for purposes of the failure-to-prosecute rule, that then takes us to the second issue: "Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed." Del Duca, 587 So.2d at 1308-09. Here that showing was made. It is undisputed that plaintiff's counsel in this case is successor counsel who did not enter an appearance until long after the motion to dismiss counterclaim had been ruled on. Successor counsel explained that the file he was given by predecessor counsel did not contain an order ruling on that motion. Proceeding on the assumption that this matter needed to be disposed of in order to move the case toward conclusion, plaintiff noticed that motion for hearing. Thus, assuming arguendo that the notices of hearing did not count as record activity, plaintiff showed good cause why the action should be left pending.
The dissenting opinion argues that we must affirm because the appellant has not brought up a transcript of the hearing on the motion to dismiss for lack of prosecution. We respectfully disagree. The facts of the case are largely undisputed, and the appellee has not made any argument regarding the absence of a transcript. After the defendant filed the motion to dismiss for lack of prosecution, the plaintiff filed a written response which is in the record and sets forth the plaintiff's position. The order on the motion to dismiss for lack of prosecution recites that the court simply heard argument of the parties. The court did not take evidence. The factual statements in the parties' briefs are consistent with each other with respect to the material issues on appeal. The merits are therefore properly before us.
The Plaintiff's memorandum states:
PLAINTIFF, NATIONAL ENTERPRISES, INC. files this memorandum in opposition to Defendant' Motion to Dismiss.
1. There are two record pleadings filed within the two years preceding the Motion to Dismiss.
2. Both are Notices of Hearing on a Motion to Dismiss a Counterclaim filed by the Defendant.
3. After the first Notice of Hearing was filed, and shortly before the hearing was scheduled, opposing counsel requested that the Hearing be rescheduled, and accommodation which the Plaintiff's counsel granted to the Defendant.
4. Shortly before the rescheduled hearing was to take place, (and after the Defendant surreptitiously filed the Motion to Dismiss, certifying the Motion as being mailed to an address which the undersigned has never occupied), Counsel for the Defendant advised the undersigned that the Motion to Dismiss the Counterclaim had been ruled on prior to the undersigned's appearance as counsel for the Plaintiff.
5. The file received by the undersigned from Plaintiff's prior counsel did not include a copy of the Order Granting the Plaintiff's Motion to Dismiss the Counter Claim.
6. As a consequence, the Notices of Hearing on the Motion to Dismiss the Counter Claim were filed in a good faith effort to move this case to conclusion.
The dissenting opinion suggests that we have treated the notice of substitution of counsel as constituting record activity. We have not. Even if it were treated as record activity, the dissenting opinion is correct in saying that over one year passed between the stipulation for substitution of counsel, and the filing of the notice of hearing on the believed-to-be-pending motion to dismiss counterclaim.
However, in counting time for purposes of a motion to dismiss for lack of prosecution, the question is whether there has been record activity for the year preceding the motion. See Del Duca, 587 So.2d at 1308. In this case there had been two notices of hearing on the believed-to-be-pending counterclaim within thirty days prior to the defendant's filing of the motion to dismiss for failure to prosecute. Plainly there had been lengthy delays earlier in the case, but those are immaterial. The question before us is whether the two recent notices of hearing count as record activity in the case, and we have concluded that they did. Assuming arguendo that they did not, we have concluded alternatively that good cause was shown as required by Del Duca. See id. at 1308-09.
The dissenting opinion also asserts that successor counsel in any event should have compared the file received from predecessor counsel against the court file or court docket sheet. That contention is irrelevant to our principal determination that the notices of hearing in this case did, in fact, constitute record activity. As to the alternative holding that the plaintiff in any event showed good cause, we do not think it is mandatory that successor counsel compare the file to the court docket sheet, although that would be the more cautious practice. Reliance on the file provided by predecessor counsel constitutes a showing of good cause under the circumstances of this case.
Reversed and remanded with directions to reinstate the action.
FLETCHER, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
The record in this case, without question, discloses a history of inattentiveness and lack of activity for periods in excess of one year by both the predecessor and successor counsels for the appellant/plaintiff, National Enterprises, Inc. ("NEI"). Based upon the undisputed lack of record activity in the record before us and in the absence of a transcript of the proceedings below, I am not prepared to hold that the trial judge, who has presided over this case from its inception, abused his discretion when he dismissed this case for lack of prosecution.
This case began on August 15, 1995, when NEI filed suit against Foodtech. At the time, NEI was represented by the law firm of Haley, Sinagra Perez, P.A. On January 9, 1996, Foodtech, then represented by Forrest Sygman, Esq. filed it's answer, affirmative defenses and counterclaim. NEI moved to dismiss Foodtech's counterclaim on January 31, 1996. This motion was granted by the trial court in an order dated June 13, 1996.
From the trial court's entry of this order dismissing Foodtech's counterclaim on June 13, 1996 until December 1998, or 2 1/2 years later, there was absolutely no record activity in this case for purposes of rule 1.420(e), Florida Rules of Civil Procedure. In fact, the only thing that transpired in this case during this 2 1/2 year "hiatus" period was a substitution of counsel for both parties. At some unknown point in time, NEI substituted J. Randolph Liebler, Esq. and the firm of Liebler, Gonzalez Portuondo, P.A. with as its counsel, instead of Haley, Sinagra Perez, P.A. Although the record is silent as to the precise date of the plaintiff's substitution of counsel, a careful review of the pleadings in this case reveals that it must have at least occurred prior to August 31, 1997, at least 16 months prior to the plaintiff's filing of the two notices of hearing at issue. That is because Mr. Liebler's name and firm address appears in the certificate of service on a "Release of Charging Lien for Attorney's Fees and Cost Advancement" filed by Haley, Sinagra Perez on September 21, 1997 but dated August 29, 1997. Thereafter, Foodtech also substituted its counsel of record by filing a stipulation for substitution of counsel on October 31, 1997, seeking to substitute Richard R. Corona, Esq. as its counsel of record for Mr. Sygman. The trial court granted this substitution on the same date in which it was requested by the defense. Thus, it is quite clear that NEI's successor counsel was onboard in this case prior to Foodtech's successor defense counsel. Contrary to the inference made in the majority opinion, a notice of substitution of counsel filed by either party may not be deemed record activity. The law is firmly established that notices, pleadings or orders related to the withdrawal and substitution of counsel are insufficient record activity to defeat a motion to dismiss for failure to prosecute under rule 1.420 because the subject activity is passive in nature and not calculated to advance the cause. See Nesbitt v. Community Health of S. Dade, Inc., 566 So.2d 1 (Fla. 3d DCA 1989) (citations omitted).
Rule 1.420, Florida Rules of Civil Procedure, provides, in relevant part, that:
Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by 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.
Since there is no record filing of the date of NEI's substitution of counsel, the majority's assertion that NEI's successor counsel "did not enter an appearance until long after the motion to dismiss counterclaim had been ruled on" (i.e. June 13, 1996), see maj. op. at 5, is unfortunately without record support. Nor is there record support that this is an otherwise undisputed matter.
The certificate of service to this pleading stated as follows:
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via U.S. Mail this 29 day of August, 1997, to National Enterprises, Inc. c/o David Wick, 5440 Morehouse Drive, Suite 4000, San Diego, California 92121, J. Randolph Liebler, Esq., 2300 Miami Center, 201 South Biscayne Boulevard, Miami, FL 33131-4329 and Forrest Sygman, Esq., 328 Minorca Avenue, 2nd Floor, Coral Gables, FL 33134
/s/ J.T. Haley
With reference to this "hiatus" period, it is, summarily stated in the majority opinion that "In 1997, there was a stipulation for substitution of counsel, followed by a period of inactivity." Maj. op. at 2.
It thus becomes abundantly clear that from at least August 1997, when we know from the pleadings before us that Mr. Leibler was serving as plaintiff's successor counsel in this case, until December 1998 (16 months), the plaintiff engaged in no record activity to advance this case forward. What happens next is somewhat unusual, but appears to be the basis of the majority's holding. On December 30, 1998, and at least well over a year after the commencement of his representation of the plaintiff, Mr. Liebler filed a notice of hearing on the same motion to dismiss counterclaim which had previously been granted by the court on June 13, 1996, and served the same on Mr. Corona, Foodtech's successor counsel of record. The hearing on the motion was specially set by Mr. Liebler for January 13, 1999.
Although we do not have a transcript of the proceedings below to reflect any representations made to the trial court, Mr. Liebler explains to us on this appeal that he noticed the motion for hearing because the file that he had received from the predecessor counsel did not contain any order on the motion to dismiss. He therefore believed that this case was not at issue in December 1998. Mr. Corona, the defendant's successor counsel, on the other hand, responds that he was confused by this latest notice of hearing because he was unaware of any pending motions in this case. For this reason, Mr. Corona explains to us that he requested and obtained a continuance of the hearing from plaintiff's counsel in order to review the court's file, something the plaintiff's counsel apparently neglected to do. In any event, on January 15, 1999, Mr. Liebler filed his Renotice of Plaintiff's Motion to Dismiss Counterclaim with the clerk's office. On that same date, defense counsel also filed defendants' motion to dismiss for the plaintiff's lack of prosecution of this cause for a period of one year. In response, the plaintiff argued that the two notices of hearing on the motion to dismiss counterclaim filed on December 30, 1998, and again on January 15, 1999, were sufficient record activity to withstand the motion made pursuant to rule 1.420(e). I disagree.
His mistaken impression about the status of this case still does not explain why well over a year elapsed before he did anything to move this case forward.
Had these two notices of hearing been valid, they most assuredly would have constituted record activity within the meaning of the rule. See Escalona v. Kersten, 682 So.2d 223, 223 (Fla. 3d DCA 1996); Heinz v. Watson, 615 So.2d 750, 753 (Fla. 5th DCA 1993). In this case, however, the notices were directed to a motion previously argued and ruled upon by the trial court and as such, were absolute nullities for purposes of the rule. See, e.g., Buss Aluminum Prods., Inc. v. Crown Window Co., 651 So.2d 694, 695 (Fla. 2d DCA 1995) (plaintiff cannot avoid dismissal by filing unauthorized document and demanding opposing party to file a motion to strike); Alech v. General Ins. Co., 491 So.2d 337, 338 (Fla. 3d DCA 1986) (concluding that "a notice of or motion for trial filed at a time when the case is not at issue, as here, is a nullity and does not constitute proper record activity sufficient to defeat an otherwise valid motion to dismiss for lack of prosecution under Fla. R. Civ. P. 1.420(e).").
Thus, because these two notices were nullities and could not properly serve as record activity designed to move this case forward toward a conclusion on the merits or to hasten it to judgment, see Barnett Bank of E. Polk County v. Fleming, 508 So.2d 718, 720 (Fla. 1987), the pivotal question then becomes whether the plaintiff in this case has shown good cause why this case should not otherwise be dismissed for lack of valid record activity. Although the trial court did not make specific findings on this issue, the lower court obviously concluded from whatever argument presented to it by the parties that good cause had not been shown. "Whether a party has shown good cause to keep an action pending, despite lack of record activity for more than one year, is a question committed to the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion." Palokonis v. EGR Enters. Inc., 652 So.2d 482, 483 (Fla. 5th DCA 1995). A showing of "[g]ood cause requires some contact with the opposing party and some form of excusable conduct or occurrence which arose other than through negligence or inattention to pleading deadlines." Modellista de Europa (Corp.) v. Redpath Inv. Corp., 714 So.2d 1098, 1100 (Fla. 4th DCA 1998);see also Levine v. Kaplan, 687 So.2d 863 (Fla. 5th DCA 1997) (holding that "[g]ood cause is excusable conduct other than negligence or inattention to deadlines. It has been defined by our courts as proof of some compelling reason why the suit was not prosecuted. For example, a showing of good cause may include proof of a calamity or proof of an opposing party's actions which prevented the plaintiff from prosecuting the cause.") (citation omitted). We cannot reverse the trial court's finding in this regard absent a showing that the trial court somehow abused its discretion. See Kearney v. Ross, 24 Fla. L. Weekly D2163 (Fla. 4th DCA Sept. 17, 1999); Cole v. Department of Corrections, 726 So.2d 854, 855 (Fla. 4th DCA 1999); Magers v. Walker's Cay Air Terminal, Inc., 451 So.2d 867 (Fla. 4th DCA 1983). Moreover, if reasonable people could differ as to the propriety of the action taken by the trial court, then there can be no abuse of discretion. See Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla. 1981); see also Baptist Mem'l Hosp., Inc. v. Bell, 384 So.2d 145, 146 (Fla. 1980). Given the record before us and in the absence of a transcript of the proceeding below, I cannot conclude that the trial court abused its discretion when it determined that the appellant/plaintiff had failed to meet its burden of demonstrating good cause.
As is clearly the case in the split decision of this appeal.
The trial court was entitled to conclude and obviously did conclude that even if the plaintiff's successor counsel had been confused by the state of the pleadings in this cause when he filed the two invalid notices of hearing on the motion to dismiss in December 1998 and January 1999, he still had represented the plaintiff for well over a year and had had ample time to exercise some diligence to ascertain the true status of this case. If the successor defense counsel's concern or confusion about the status of this case caused him to make a special trip to the clerk's office to review the court file, I see no reason why the plaintiff's counsel could not have similarly done the same and sooner. Moreover, any confusion on the part of the plaintiff's counsel in December 1998 or January 1999 still does not explain the absence of any other record activity in this case by the plaintiff for well over a year prior to December 1998. The bottom line in this case is that I don't believe that we can conclude that the trial court abused its discretion based upon the record before us. Citing Del Duca v. Anthony, 587 So.2d 1306 (Fla. 1991), the majority opines that the two notices of hearing, albeit invalid, could still toll the 1 year time period as long as they were filed in good faith. Maj. op. at 4. With all due respect, I believe that the majority has either misconstrued the supreme court's holding in Del Duca or is attempting to extend Del Duca's holding beyond its expressed confines. In Del Duca, the plaintiff/petitioner timely filed a valid request to produce and notice of service of interrogatories on the defendant 364 days after the date of the last record activity. Unlike the invalid notices filed herein, the court was faced with the question of whether Del Duca's otherwise valid discovery was filed as a bona fide attempt to move the case towards a conclusion or whether it was filed as a mere attempt to avoid dismissal under rule 1.420(e). The issue, therefore, in Del Duca was confined solely to "the question of the proper test for trial courts to apply when considering a dismissal for failure to prosecute when some [valid] discovery activity had occurred during the last year." 587 So.2d at 1308. The court expressly recognized that a conflict existed among the districts as to the test to be applied on this issue.Id. at 1307. In resolving the conflict on this narrow issue, the court adopted the second district's test which "allows a trial judge to dismiss the cause if the discovery is in bad faith and is also without any design `to move the case forward toward a conclusion on the merits.'" Id. at 1308. Del Duca was thus confined to the filing of valid discovery within the 1 year period. I do not believe that Del Duca remotely supports the majority's conclusion that the 1 year period can be tolled by the good faith filing of an otherwise invalid paper or pleading. Indeed, if the majority's reading of Del Duca is correct, then a misguided, but well-meaning pro se plaintiff for example could toll the 1 year period by simply filing copies of his/her birth certificate or driver's license as pleadings. The Del Duca decision most assuredly cannot be read to reach such a result.
Foodtech is correct in its assertion that our Alech decision squarely controls this case. In Alech, we held that where there had been no record activity for more than a year and the plaintiff noticed the case for trial when the case was not yet at issue, there was insufficient record activity to defeat a motion to dismiss for failure to prosecute. 491 So.2d at 338. The notice for trial in Alech, like the two notices of hearing in this case, was a nullity and therefore could not suffice as proper record activity to defeat a motion to dismiss for lack of prosecution under rule 1.420(e). Further, in the absence of a transcript, reflecting plaintiff's proffered reason, if any, for good cause, I do not understand how this court can find the trial court's dismissal of this case to be an abuse of discretion. Indeed, I believe that the presumption of correctness which attaches to the trial court's order must remain intact on this record. Van den Boom v. YLB Indus., Inc., 687 So.2d 964, 965 (Fla. 5th DCA 1997).
For all of the foregoing reasons, I believe that the order under review should be affirmed.