Carter v. Lake County, 5D02-2205.

• Decision Date: 28 March 2003
• Docket Number: No. 5D02-2205.,5D02-2205.
• Citation: 840 So.2d 1153
• Parties: Daryl M. CARTER, etc., Appellant, v. LAKE COUNTY, etc., et al., Appellees.
• Court: Florida District Court of Appeals

840 So.2d 1153

Daryl M. CARTER, etc., Appellant, v. LAKE COUNTY, etc., et al., Appellees.

No. 5D02-2205.

District Court of Appeal of Florida, Fifth District.

March 28, 2003.

M. Bradley Luczak of Sobering, White & Luczak, P.A., Winter Park, for Appellant.

Melanie N. Marsh, Lake County Attorney's Office, Tavares, for Appellee Lake County.

No Appearance for Appellees CSX and Robert McKee.

SAWAYA, J.

Daryl Carter appeals the denial of his motion for attorney's fees. The trial court denied the motion because, contrary to the requirement of Florida Rule of Civil Procedure 1.525, the motion was served on Lake County more than thirty days after Lake County served its notice of voluntary dismissal on Carter. Carter argues that the notice served on him was actually a notice of dropping a party under Florida Rule of Civil Procedure 1.250, which does not contain a thirty-day time limit for filing a motion for fees and, alternatively, that he established excusable neglect under Florida Rule of Civil Procedure 1.090(b) to allow his motion to be heard on the merits.

Although we conclude that the notice was a notice of voluntary dismissal under rule 1.420 and that Carter failed to comply with the time limits of rule 1.525 to serve his motion for fees, we reverse because the trial court failed to apply the correct standard to determine whether excusable neglect was established under rule 1.090(b). We will discuss the factual and procedural background of this case, our analysis that leads us to the conclusion that the notice was a notice of voluntary dismissal under rule 1.420, and the correct standard that should be applied when determining whether a party has established excusable neglect under rule 1.090(b).

Factual And Procedural Background

In order to resolve the issues before us, it is not necessary to give a detailed account of the facts of the underlying eminent domain action. Suffice it to say that Lake County filed a petition seeking to acquire certain property and named Carter, CSX Transportation (CSX), and others as respondents. Lake County subsequently filed an amended petition that named only CSX and the tax collector as parties. Lake County formalized its act of dropping Carter as a party by filing a Notice of Dropping Parties pursuant to rule 1.250(b). Carter then filed a motion to intervene, claiming ownership of section 25, which was included in the property described in the amended petition. We note that CSX did not claim any ownership interest in section 25. Shortly thereafter, Lake County and CSX entered into a joint stipulation whereby CSX agreed to an Order of Taking and entry of a final judgment that did not include section 25. CSX, in return, released Lake County from any and all claims. Carter's motion to intervene was thereafter granted on March 12, 2001. A partial order of taking and final judgment that incorporated the stipulation was entered on May 4, 2001. On May 8, 2001, Lake County filed its Notice of Voluntary Dismissal pursuant to rule 1.420 dismissing Carter and discharging the lis pendens that had been filed against section 25.

On June 19, 2001, Carter filed his motion for attorney's fees pursuant to section 73.901, Florida Statutes. In denying Carter's motion for attorney's fees, the trial court relied on rule 1.525, which provides that "[a]ny party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal."¹ Because Carter missed this deadline, we must analyze the notice served on Carter to determine whether it is a notice of voluntary dismissal or whether it is a notice of dropping a party under rule 1.250 as Carter contends.²

The Notice Was A Notice Of Voluntary Dismissal Under Rule 1.420

We reject Carter's argument that the notice is a notice of dropping a party under rule 1.250. An essential distinction between a notice of dropping a party and a voluntary dismissal is that the former concludes the action as to the dropped party while the latter is generally utilized to conclude the action in its entirety. We agree with Lake County that the notice served on Carter was a notice of dismissal under rule 1.420 because it effectively concluded the litigation. At the time Lake County served its notice of voluntary dismissal, the litigation consisted solely of section 25 in which no one other than Carter claimed an ownership interest. CSX had previously settled with Lake County, and an order of partial taking and a partial final judgment were entered encompassing all of the land subject to the litigation except section 25.³ The record also reveals that Lake County never took possession of section 25 and did not pay any compensation to anyone for section 25. Moreover, Carter's attorney stated on the record that "[w]hen the Notice was received by the Law Firm, it was treated, for the purposes of internal calendaring and tickling, as if it were a notice of voluntary dismissal under Rule 1.420 of the Florida Rules of Civil Procedure...."

Because we conclude that the notice was a notice of voluntary dismissal under rule 1.420, the time limits of rule 1.525 were triggered. Since Carter did not comply with the time limits of rule 1.525, we must next determine whether the trial court applied the correct standard to determine whether Carter established excusable neglect under rule 1.090(b).

The Proper Standard to Determine Excusable Neglect

Prior to January 1, 2001—the effective date of rule 1.525—the courts generally held that a party could file and serve a motion for fees and costs within a reasonable time after the date the final judgment was entered. See Ulico Cas. Co. v. Roger Kennedy Constr., Inc., 821 So.2d 452 (Fla. 1st DCA 2002)

. The purpose of rule 1.525 is to eliminate the reasonable time rule and establish a time requirement to serve motions for costs and attorney's fees. Id. Carter seeks refuge from this time requirement in the provisions of rule 1.090(b), which provides in pertinent part:

When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect,....

Fla. R. Civ. P. 1.090(b) (emphasis added). Carter contends that the missed deadline was the result of excusable neglect based on a breakdown of the tickler and calendar systems in his office. Carter further contends that the trial court erred in failing to apply the liberal approach applied by the courts when determining whether excusable neglect exists under rule 1.540. Carter argues that excusable neglect should be given the same meaning regardless of where it appears in the rules.

At the outset of our discussion, we note that Lake County does not argue that the excusable neglect provisions of rule 1.090(b) do not apply to the time limits of rule 1.525. We can discern no valid reason, either in the provisions of the rules or the case law, that would support such an argument and perhaps Lake County could not either. Moreover, the pertinent part of rule 1.090(b) that states that it applies to acts required to be done "within a specified time ... by these rules ..." clearly indicates that it applies to all time limits in the Florida Rules of Civil Procedure, including the time limitations of rule 1.525, unless a particular rule states otherwise.

Hence, we turn our attention to the proper standard for determining whether excusable neglect has been shown under rule 1.090(b). We begin our analysis by noting that there is no precise definition of the term "excusable neglect" in the rules or the case law. Therefore, excusable neglect remains a general concept that must be applied on a case-by-case basis. We also note that most of the cases that deal with excusable neglect determinations do so in the context of rule 1.540(b). While these cases provide guidance as to how the term should be applied in a variety of factual situations, the question we must decide is whether we should apply the same standard utilized to determine excusable neglect under 1.540 to situations where a party seeks relief based on excusable neglect under rule 1.090(b).

We can find no sound reason for giving the term "excusable neglect" different interpretations depending on the particular rule of civil procedure that is being applied. We believe the better reasoned approach is to give the term the same meaning and consistently apply it wherever it appears in the rules of civil procedure unless a rule prescribes a particular definition of the term. This approach is not new or novel. Our research has revealed that Florida courts have consistently looked to and applied case law decided under rule 1.540 when deciding whether excusable neglect has been shown under the provisions of other rules. See, e.g., Oglesby-Dorminey v. Lucy Ho's Rest., 815 So.2d 749 (Fla. 1st DCA 2002)

; Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614 (Fla. 4th DCA 2000); Spencer v. Barrow, 752 So.2d 135 (Fla. 2d DCA 2000); see also Kendall Country Estate, Inc. v. Pierson, 826 So.2d 1002 (Fla. 3d DCA 2001); Hernandez v. Page, 580 So.2d 793 (Fla. 3d DCA 1991).

We find support for our decision in the opinions rendered by the federal courts interpreting Federal Rules of Civil Procedure 6(b) and 60(b). We find these opinions persuasive because rule 1.090 is substantially the same as Federal Rule 6, and rule 1.540 is substantially the same as Federal Rule 60. The Florida courts have consistently held that "[f]ederal case law which construes a federal...