Edward L. Nezelek, Inc. v. Sunbeam Television Corp.

• Decision Date: 16 March 1982
• Docket Number: No. 81-5,WCKT-TV and R,81-5
• Parties: EDWARD L. NEZELEK, INC., a New York corporation, Appellant, v. SUNBEAM TELEVISION CORPORATION, A Florida corporation, d/b/aoger Burnham, an individual, and Mark Wolin an individual, Appellees.
• Court: Florida District Court of Appeals

Page 51

413 So.2d 51

EDWARD L. NEZELEK, INC., a New York corporation, Appellant, v. SUNBEAM TELEVISION CORPORATION, A Florida corporation, d/b/a WCKT-TV and Roger Burnham, an individual, and Mark Wolin an individual, Appellees.

No. 81-5.

District Court of Appeal of Florida,

Third District.

March 16, 1982.

Rehearing Denied May 18, 1982.

Richard L. Polin, Fort Lauderdale, for appellant.

Dwight Sullivan, Miami, for appellees.

Before SCHWARTZ, NESBITT and FERGUSON, JJ.

FERGUSON, Judge.

Edward L. Nezelek, Inc., appeals from a final judgment entered against it for failure to file an amended complaint contending that the complaint was improperly dismissed for failure to state a cause of action and the trial court erred in entering an order of final judgment without notice to plaintiff of the hearing on the motion. We reverse.

Nezelek sued Sunbeam Television Corporation, Roger Burnham and Mark Wolin, appellees, alleging that it had been libeled in a television newscast critical of appellant's performance as general contractor of a new United States customs facility at the Miami International Airport. On March 6, 1980, the trial court granted the motion of defendants/appellees to dismiss with prejudice all causes of action for defamation arising out of the July 31, 1979 broadcast, except "those causes of action based on five quoted statements" in a letter sent to appellees on August 9, 1979 demanding retraction. The court also granted defendants/appellees' motion to dismiss for failure to state a cause of action and gave plaintiff twenty days from the date of that order to file an amended complaint. After Nezelek failed to file an amended complaint within the twenty-day period, appellees moved the court, ex parte, for entry of final judgment for failure to file an amended complaint "within the time allowed by ... Court order ... or at any time." On April 7, 1980, the court granted final judgment for appellees with respect to the five statements quoted in the letter of August 9, 1979. Nezelek's motion for rehearing on the final judgment was denied.

I Notice

As the first point on appeal, Nezelek argues that appellees have no procedural basis for proceeding ex parte before the trial court in order to obtain a final judgment and that it is entitled to notice and hearing on defendant's motion for entry of final judgment. We agree.

In this case the pertinent language in the order of dismissal reads:

FURTHER ORDERED that the Defendant's Motion to Dismiss for failure to state a cause of action is granted and the Plaintiff shall have twenty (20) days from the date of this Order in which to file and serve an Amended Complaint; ...

The motion for final judgment and the final judgment state as the sole basis for judgment the fact that Nezelek failed to file an amended complaint within the time ordered by the court. The motion for entry of final judgment should have been, in our view, treated as a motion for involuntary dismissal, pursuant to Florida Rule of Civil Procedure

1.420(b) (1979). ¹ Involuntary dismissal is the defending party's remedy for failure of a party seeking affirmative relief to further plead. H. Trawick, Jr., Trawick's Florida Practice and Procedures § 21-5 (1981 ed.), at p. 288

Rule 1.420(b) requires that "notice of hearing on the motion shall be served as required under Rule 1.190(d)" and that:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or lack of an indispensable party, operates as an adjudication on the merits.

We recognize that under Florida law if notice has been given to a plaintiff as required by Rule 1.420(b), the trial court has the authority to dismiss with prejudice the complaint of that party for failure to timely amend. ² See, e.g., E & E Electric Contractors, Inc. v. Singer, 236 So.2d 195 (Fla. 3d DCA 1970), cert. dismissed, 239 So.2d 827 (Fla.1970) (not addressing issue but implying that plaintiffs had separate notice of motion for final judgment and dismissal with prejudice); Clifford Ragsdale, Inc. v. Morganti, Inc., supra at n.2, (plaintiffs filed motion in opposition to motion for final judgment dismissing complaint with prejudice). ³

Appellees argue that Nezelek had notice as required by Florida Rule of Civil Procedure 1.420(b) because the March 6, 1981 order served as notice that failure to amend within twenty days would automatically result in dismissal with prejudice, or, alternatively, that the final judgment was itself sufficient notice since upon rehearing Nezelek could present his defense against dismissal with prejudice. In support of the argument it is contended that we should apply the logic of the court in Capers v. Lee, 91 So.2d 337 (Fla.1956) and find that Nezelek is not entitled to separate notice on the motion for entry of final judgment for failure to comply with a court order since Nezelek must have known at the time of the March 6, 1981 order--though that order did not specify--that failure to amend would result in dismissal with prejudice and not merely in dismissal. We reject this logic for the following reasons. We find Capers v. Lee, supra, inapplicable to this case as Capers, supra, was decided before the amendment to Florida Rule of Civil Procedure 1.420(b) requiring express notice of a motion to dismiss for failure to comply with a rule of civil procedure or court order. Cf. 31 Fla.Stat.Anno. 14; Author's Comment, Fla.R.Civ.P. 1.500, "The court is required to enter such a default after notice and thus the new rule overrules Capers v. Lee, 91 So.2d 337."

An order dismissing a claim for failure to state a cause of action with leave to amend is not an order of court to amend. It is permission to do that which without the court's permission would not be allowable. ⁴ Failure to amend after being given leave to amend is not disobedience of a court order, but is merely a continuing failure to state a cause of action. Hancock v. Piper, 186 So.2d 489 (Fla.1966). See, e.g., cases interpreting Federal Rule of Civil Procedure 41(b): Johnson v. Boyd-Richardson Co., 650 F.2d 147 (8th Cir. 1981); Trujillo v. Colorado, 649 F.2d 823 (10th Cir. 1981); Mann v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 488 F.2d 75 (5th Cir. 1973). See also State ex rel. Gamble Construction Co., Inc. v. Enright, 556 S.W.2d 726, 728 (Mo.App.1977); Black's Law Dictionary 801 (5th ed. rev. 1979). The consequences are the same, however, whether the motion for involuntary dismissal with prejudice is based on a continuing failure to state a cause of action under Rule 1.140(b)(6) after having been granted twenty days to do so, or based on failure to comply with an order of the court. The vehicle for the relief is still Rule 1.420(b) and a party moving for dismissal pursuant to its provision is required to serve notice of hearing under Rule 1.090(d).

Nor will an order of dismissal with leave to amend, without more, serve as notice of a motion to dismiss with prejudice in the event of failure to amend. See, e.g., Hancock v. Piper, 175 So.2d 207 (Fla. 2d DCA 1965), cert. discharged, 186 So.2d 489 (Fla.1966). See also Johnson v. Boyd-Richardson Co., supra; Trujillo v. Colorado, supra; Mann v. Merrill Lynch, Pierce, Fenner and Smith, Inc., supra. This is distinguished from the situation where an order of dismissal with leave to amend expressly provides that failure to amend will result in dismissal with prejudice. See National Shawmut Bank of Boston v. Woodard, 220 So.2d 636 (Fla. 3d DCA 1969), cert. denied, 225 So.2d 917 (Fla.1969); Stevens v. Metropolitan, Dade County, 164 So.2d 273 (Fla. 3d DCA 1964).

Second, a holding that opportunity for argument on a motion for rehearing is sufficient to protect a plaintiff's right to notice under the Florida Rules of Civil Procedure 1.420(b), not only directly conflicts with the express pre-hearing notice requirement of Rule 1.420(b), but prevents the plaintiff from exercising other procedural rights provided by Florida Rules. For example, after entry of final judgment a plaintiff cannot take a voluntary dismissal pursuant to Florida Rules of Civil Procedure 1.420(a)--a dismissal which is without prejudice unless otherwise stated in the notice or stipulation. Florida law, however, requires that a plaintiff be given the opportunity to exercise his right to voluntarily dismiss the action after the court has dismissed the complaint with leave to amend if no further order has been entered prior to entry of final judgment. Hibbard v. State Road Department of Florida, 225 So.2d 901 (Fla.1969); Heinz Paving & Asphalt Company, Inc. v. United States Fidelity & Guaranty Company, 360 So.2d 29 (Fla. 4th DCA 1978). Ex parte motions are generally disfavored by the Florida Rules of Civil Procedure, see, e.g., Fla.R.Civ.P. 1.420, 1.090(d), 1.500(b), and case law, see, e.g., Hilton v. Florio, 317 So.2d 83 (Fla. 3d DCA 1975) (motion to dismiss may not be entertained by court ex parte); Barr v. Ehrlich, 301 So.2d 147 (Fla. 4th DCA 1974) (ethical considerations forbid ex parte applications to judge where dismissal is in issue); Polland v. Visual Graphics, Corp., 240 So.2d 835 (Fla. 3d DCA 1970) (entry of order on motion to dismiss error where failure to comply with notice rule).

We hold, therefore, that once a court has dismissed a complaint for failure to state a cause of action, but has granted the party leave to amend, that complaint may subsequently be dismissed with prejudice only if one of two notice conditions are met, (1) separate notice to plaintiff of hearing on the motion for dismissal with prejudice or entry of final judgment, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure

to amend within the stated time, the cause will be dismissed without further notice. See National Shawmut Bank of Boston, supra. See, e.g., Churruca v. Miami...