Bondar v. Town of Jupiter Inlet Colony
| Citation | 321 So.3d 774 |
| Decision Date | 05 May 2021 |
| Docket Number | No. 4D19-2118,4D19-2118 |
| Parties | Holly BONDAR and Alexander Bondar, Appellants, v. TOWN OF JUPITER INLET COLONY, Appellee. |
| Court | Court of Appeal of Florida (US) |
Bradley S. Gould of GrayRobinson, P.A., Miami, for appellants.
Michael T. Burke and Hudson C. Gill of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellee.
The appellants, Holly and Alexander Bondar ("the Owners"), appeal the dismissal of their counterclaims against the appellee, Town of Jupiter Inlet Colony ("the Town"), for lack of prosecution. The Owners argue that the trial court erred in dismissing their counterclaims because the Florida Rule of Civil Procedure 1.420 notice which triggered the dismissal was entered by a recused judge. We agree and reverse. The Town cross-appeals, arguing that the trial court erred in denying its motion for summary judgment as to four of the counterclaims raised by the Owners. As to two of those counterclaims (inverse condemnation and intentional interference with an advantageous business relationship), we affirm without discussion the denial of summary judgment. However, as to the two counterclaims alleging violations of substantive due process and equal protection, we reverse the denial of summary judgment.
The Owners owned one and leased two residences located within the Town. All three properties were acquired with the specific purpose of renting them to others on a short-term basis. The Owners intended to eventually purchase the leased properties. The Owners listed the properties on various rental websites. From 2007 through 2009, the Owners rented the homes over 150 times, for periods ranging from one week to one month.
The Town had a single zoning designation: "RS Single-Family Dwelling District." There were no commercial, industrial, multi-family or other zoning districts located within the Town.
In 2008, a neighbor to one of the properties complained to the Town commission about the "short-term" manner in which the Owners were renting the property. In October 2008, the Town issued notices of violation to the Owners for each of the three properties, claiming that the Owners were renting the properties in a manner that violated the Town's Code of Ordinances.
In January 2009, the Town filed a declaratory relief action against the Owners ("the Dec Action"). The Town alleged that "the Town's Zoning Code provides that ‘every residence shall be used only as a single-family dwelling ... and no business activity is permitted except as allowed under the definition of home occupation.’ " The Town further alleged that the Owners registered and utilized the properties as a "public lodging establishment" and "resort dwelling," and advertised the properties for rental on a short-term basis. The Town stated that it was seeking a judicial determination as to whether the Owners’ use of the properties violated the Town's Zoning Code. The Owners counterclaimed, as discussed further below. However, in order to "streamline" the case resolution, the parties agreed that the Owners’ counterclaims would be dismissed without prejudice, pending the trial court's resolution of whether the Owners’ use of the properties violated the Town's Zoning Code.
Both parties moved for summary judgment in the Dec Action. In January 2011, the trial court entered partial summary judgment, denying the Town's motion for summary judgment and granting the Owners’ motion. The trial court found "that the [Owners’] use of the residential dwelling for ‘rental’ purposes was not prohibited under the [Town's Zoning] Code." It found that it was "clear, [that] no restrictions on the length or frequency of the rental of property within the Town limits were set out in th[e relevant] provision."
Upon prevailing in the Dec Action, the Owners refiled their counterclaims. Relevant to this appeal, the Owners raised four counterclaims for damages based on: (1) inverse condemnation; (2) substantive due process violations prohibited by 42 U.S.C. § 1983 ; (3) equal protection violations prohibited by 42 U.S.C. § 1983 ; and (4) intentional interference with an advantageous business relationship. The Town filed a motion for summary judgment as to all four counterclaims. The trial court denied the Town's motion, which is the subject of the Town's cross-appeal.
In July 2015, the Owners filed a motion to disqualify the trial judge ("the Recused Judge"). The Recused Judge entered an order recusing himself, resulting in the case being reassigned.
In January 2018, the Recused Judge was reassigned to the division in which the instant case was pending. Between January 8, 2018 and December 21, 2018, there was no record activity in the case. Apparently not remembering his prior order of recusal, on December 21, 2018, the Recused Judge entered a "Notice of Lack of Prosecution, Court's Motion to Dismiss, and Order Setting Hearing" ("the Court's Notice"). The Court's Notice stated that there had been no activity in the case for ten months, and that, pursuant to Florida Rule of Civil Procedure 1.420(e), if there was no activity within sixty days of the notice, the trial court would dismiss the case on its own motion or upon the motion of an interested party. It also scheduled a hearing for March 1, 2019. The Court's Notice stated that, if there were no filings within the sixty-day grace period, then the Owners must file a showing of good cause, no less than five days prior to the March 1 hearing.
There was no record activity until February 28, 2019, when the Owners filed a motion to enforce the Recused Judge's prior recusal order and an emergency motion to cancel the hearing set for the following day. The same day the motions were filed, the Recused Judge entered two orders: (1) recusing himself again and reassigning the case; and (2) denying the Owners’ emergency motion to reschedule the hearing scheduled for the following day as moot, stating that the hearing "has been cancelled based on" his recusal and reassignment of the case.
On March 20, 2019, the Town filed a motion to dismiss for lack of prosecution in accordance with rule 1.420(e). In the motion, the Town argued that after the Recused Judge entered the Court's Notice, the Owners had sixty days to file record activity, and if not, then they had five days prior to the March 1, 2019 hearing to show good cause. It argued that the Owners did not satisfy either requirement in the requisite time period. The Town argued that since the Owners failed to meet the deadlines, the case must be dismissed.
The trial court held a hearing on the Town's motion. The Owners argued that the Court's Notice was entered by the Recused Judge, who they argued "essentially ... abandoned" the notice because the Recused Judge "also entered an order on a motion to continue basically saying it was moot." The Town argued that even though it was entered by the Recused Judge, the Court's Notice was valid, because it was simply a ministerial notice tracking the language of rule 1.420(e).
The trial court entered an order dismissing the Owners’ counterclaims for lack of prosecution. The trial court found that there had been no record activity within the ten months prior to the Court's Notice, and no record activity within the sixty days after. The trial court further stated that the fact that the Recused Judge entered the Court's Notice, even after he had previously recused himself, did not alter the outcome, because the Court's Notice was simply a ministerial act.
The Owners gave notice of appeal, and the Town gave notice of cross-appeal.
On appeal, the Owners argue that the trial court erred in dismissing their counterclaims because the Recused Judge entered the Court's Notice, which essentially initiated the dismissal procedure set forth in rule 1.420(e). The Town argues that the Court's Notice, although entered by the Recused Judge, was a ministerial act, and therefore, was validly entered. We agree with the Owners and reverse.
Rule 1.420(e) states:
(e) Failure to Prosecute. In 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 10 months , and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred . If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice , and if no stay was issued or approved prior to the expiration of such 60-day period, the action 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 party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending . Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
Fla. R. Civ. P. 1.420(e) (emphases added). There is no question that there was no record activity for a period of ten months prior to the Court's Notice and no record activity within the sixty days immediately following the notice.
" Rule 1.420(e) has been interpreted as ‘a mandatory rule’ " and " ‘[u]nless a party can satisfy the exceptions provided for in the rule,’ " the case shall be dismissed. Publicidad Vepaco, C.A. v. Mezerhane , 290 So. 3d 974, 977 (Fla. 3d DCA 2019) (quoting CPI Mfg. Co. v. Industrias St. Jack's, S.A. de C.V. , 870 So. 2d 89, 91 (Fla. 3d DCA 2003) ). However, since the applicable time periods are calculated with reference to the date...
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...1.420(e), the trial court erred by dismissing Appellant's complaint under that provision. See Bondar v. Town of Jupiter Inlet Colony, 321 So.3d 774, 780 (Fla. 4th DCA 2021) ("[S]ince the applicable time periods are calculated with reference to the date of entry of a notice of no activity fo......