Chemrock Corp.. v. Tampa Electric Co.

• Decision Date: 22 September 2011
• Docket Number: No. SC09–2263.,SC09–2263.
• Parties: CHEMROCK CORPORATION, Petitioner,v.TAMPA ELECTRIC COMPANY, etc., d/b/a TECO Peoples Gas Company, Respondent.
• Court: Florida Supreme Court

71 So.3d 786

CHEMROCK CORPORATION, Petitioner,

v.TAMPA ELECTRIC COMPANY, etc., d/b/a TECO Peoples Gas Company, Respondent.

No. SC09–2263.

Supreme Court of Florida.

June 30, 2011.Rehearing Denied Sept. 22, 2011.

Jamie P. Yadgaroff, Bala Cynwyd, PA, for Petitioner.Pedro F. Bajo, Jr. and Anthony J. Cuva of Bajo Cuva, P.A., Tampa, FL, for Respondent.LABARGA, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Chemrock Corporation v. Tampa Electric Co., 23 So.3d 759 (Fla. 1st DCA 2009). The district court certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in Pagan v. Facilicorp, Inc., 989 So.2d 21 (Fla. 2d DCA 2008), and Edwards v. City of St. Petersburg, 961 So.2d 1048 (Fla. 2d DCA 2007), and the Third District Court of Appeal in Padron v. Alonso, 970 So.2d 399 (Fla. 3d DCA 2007). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The conflict issue in this case involves the proper interpretation of Florida Rule of Civil Procedure 1.420(e), which provides for involuntary dismissal of court actions for lack of prosecution. As we explain below, the filing made by Chemrock during the sixty-day grace period set forth in rule 1.420(e) met the rule's requirement for record activity, thus precluding dismissal for lack of prosecution. Therefore, we quash the decision of the First District in Chemrock and approve the conflict cases certified by the First District below.

FACTS AND PROCEDURAL BACKGROUND

In May 2002, Chemrock, a Delaware company that processes perlite for horticultural and construction use in its Jacksonville, Florida, plant, sued Tampa Electric Company d/b/a TECO Peoples Gas Company (hereafter “Tampa Electric”) in circuit court in Duval County. The complaint alleged several counts for damages based on the claim that natural gas being supplied to Chemrock was contaminated with debris that caused damage to Chemrock's furnaces. The case was set for a July 2003 trial, but was continued after the parties filed a joint motion for continuance. The order of continuance stated that the case would be reset for trial upon proper motion. Discovery and trial preparation were undertaken, during which time the parties engaged in numerous disagreements concerning discovery and other matters. Neither party filed a motion to have the case reset for trial.

On December 27, 2006, Tampa Electric filed a notice of lack of prosecution under Florida Rule of Civil Procedure 1.420(e), alleging that there had been no record activity for the prior ten months. Rule 1.420(e) provides as follows:

(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). This version of rule 1.420(e) was adopted in 2005 and became effective January 1, 2006, see In re Amendments to the Florida Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176, 177 (Fla.2005), and has not since been amended. Prior to the 2006 amendment, the rule provided that actions in which there is no record activity by filing of pleadings, order of court, or otherwise for a period of one year shall be dismissed unless a stipulation staying the action is approved by the court, a stay order has been filed, or a party shows good cause in writing at least five days before a hearing on the motion alleging why the action should remain pending. The prior version of the rule did not contain the sixty-day grace period following the notice of lack of prosecution in which the party could avoid dismissal by engaging in record activity.

In February 2007, during the sixty-day grace period provided by the rule, Chemrock filed a Motion in Opposition to Motion for Dismissal for Lack of Prosecution and Showing Good Cause Why Action Should Remain Pending. The court docket reflects no subsequent record activity until June 24, 2008, when Tampa Electric filed its motion to dismiss for lack of prosecution. Chemrock subsequently filed an affidavit in support of its motion asserting good cause to allow the case to remain pending.

A hearing was held on August 26, 2008, after which the trial court dismissed the case for lack of prosecution, although no transcript of the hearing appears in the record of this case. Chemrock timely appealed to the First District, which affirmed the trial court's dismissal of the action. The district court explained:

Prior to January 1, 2006, Rule 1.420(e) allowed a case to be dismissed for lack of prosecution when there was no “record activity” during the preceding twelve months. Under this version of the Rule, the Supreme Court established a bright-line test for “record activity,” defining it as any document filed in the record. See Wilson v. Salamon, 923 So.2d 363, 368 (Fla.2005). In so doing, Wilson receded from precedent that attempted to differentiate between active “record activity”—activity designed to hasten the case to a conclusion on the merits—and passive “record activity”—activity which had no effect on the case's progress. Id. at 369; see also Diamond Drywall Sys., Inc. v. Mashan Contractors, Inc., 943 So.2d 267, 269 (Fla. 3d DCA 2006). Therefore, at the time of Wilson, the only relevant consideration before a case could be dismissed under the Rule was the passage of time.

Shortly after Wilson, the Supreme Court amended Rule 1.420(e) to its current version, incorporating two significant changes. First, it shortened the period of time that must elapse before the moving party can take action from twelve months to ten months. Second, it created a sixty-day grace period during which the nonmoving party had various options to avoid dismissal. These changes widened the scope of the Rule, permitting a trial court to consider more than just the passage of time before dismissing a case for lack of prosecution.

....

The Second and Third districts have extended Wilson's broad definition to any grace period filings. According to this interpretation, which Chemrock urges us to adopt, any filing during the sixty-day period, regardless of merit, ipso facto averts dismissal. This interpretation renders any role the trial court may play, any equitable arguments the moving party may be able to raise, and the facts of the case irrelevant. It is contrary to the Committee's intent and divests the Rule of all meaning.

Chemrock, 23 So.3d at 760–61 (citations omitted). The First District concluded:

If the current version of Rule 1.420(e) is to have any role in civil litigation, Chemrock's filing during the grace period cannot be found sufficient to avoid dismissal. Accordingly, the trial court properly dismissed the case for lack of prosecution. We find the Wilson definition of “record activity” applicable to the ten months before the notice of lack of prosecution may be filed, but inapplicable to the sixty-day grace period following service of the notice.

Id. at 763. Based on its interpretation of the requirements of rule 1.420(e) as amended effective January 1, 2006, the First District affirmed dismissal of the case for lack of prosecution, concluding that Chemrock's filing during the sixty-day grace period was not an attempt to move the case toward conclusion on the merits. Id. Because the First District recognized that at least three other district court decisions have applied Wilson's bright-line definition of record activity to the filing required during the sixty-day grace period under rule 1.420(e), it certified express and direct conflict with those cases— Pagan v. Facilicorp, Inc., 989 So.2d 21 (Fla. 2d DCA 2008); Padron v. Alonso, 970 So.2d 399 (Fla. 3d DCA 2007); and Edwards v. City of St. Petersburg, 961 So.2d 1048 (Fla. 2d DCA 2007). Chemrock, 23 So.3d at 763. We agree that the holding in Chemrock expressly and directly conflicts with the holding in those cases on the question of whether the Wilson bright-line rule applies to the sixty-day grace period. Thus, we turn next to a discussion of the cases cited for conflict.

The Conflict Cases

In Pagan, the Second District interpreted rule 1.420(e) under the “bright-line” test announced in Wilson, and held that a motion to stay filed by the plaintiff during the sixty-day grace period met the rule's requirement for record activity. Pagan, 989 So.2d at 23. In so holding in Pagan, the Second District relied on its decision in Edwards, which also involved amended rule 1.420(e). 989 So.2d at 23. In Edwards, the Second District relied on the holding and rationale set forth in Wilson, noting that Wilson had expressly receded from precedent that required trial courts to attempt to characterize the quality of the record activity as passive or active. Edwards, 961 So.2d at 1049–50. The Second District held that the bright-line rule announced in Wilson, which furthered the salutary purposes of promoting resolution of cases on the merits and decreasing litigation over the rule's...